                                                             2014 WI 39

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP2361-D
COMPLETE TITLE:         Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        William J. Grogan,
                                  Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST GROGAN

OPINION FILED:          June 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   PROSSER, J., did not participate.

ATTORNEYS:
                                                                            2014 WI 39
                                                                       NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.    2012AP2361-D


STATE OF WISCONSIN                               :               IN SUPREME COURT

Office of Lawyer Regulation,

            Complainant,                                                  FILED
      v.                                                            JUN 19, 2014
William J. Grogan,                                                     Diane M. Fremgen
                                                                    Clerk of Supreme Court
            Respondent.




      ATTORNEY         disciplinary      proceeding.        Attorney's          license

revoked.



      ¶1    PER    CURIAM.      We     review   the     recommendation          of    the

referee, Reserve Judge Robert E. Kinney, that the license of
Attorney   William       J.   Grogan    to   practice      law    in     Wisconsin      be

revoked    due    to    professional     misconduct.             The     referee     also

recommended that Attorney Grogan be ordered to pay restitution
                                                                    No.   2012AP2361-D



and   the   costs    of     this     proceeding.       Attorney    Grogan     did   not

timely appeal the report and recommendation.1

      ¶2    We      adopt      the     referee's       findings     of    fact      and

conclusions of law and agree that the seriousness of Attorney

Grogan's professional misconduct warrants the revocation of his

law license.     We further agree that he should pay restitution in

the amounts described below, and that he should pay the costs of

this proceeding.

      ¶3    Attorney        Grogan     was       admitted   to   practice     law    in

Wisconsin in 1978.          He has practiced in the Appleton area.

      ¶4    Attorney Grogan has been previously disciplined for

unprofessional conduct.              In 2007, Attorney Grogan was publicly

reprimanded for failing to timely file income and withholding

tax returns, and failing to provide information in a timely

fashion     during        an       Office    of      Lawyer      Regulation      (OLR)

investigation.       See Public Reprimand of William J. Grogan, No.

2007-6.     In 2011, Attorney Grogan's Wisconsin law license was


      1
       The referee filed an unsigned version of his report and
recommendation on November 5, 2013, and filed the signature page
on November 11, 2013.    Counting from the latter of these two
dates, Attorney Grogan's appeal was due in early December of
2013.   See SCR 22.17(1) (appeal due within 20 days after the
filing of the referee's report).   On December 27, 2013, nearly
four weeks after his appeal deadline, Attorney Grogan filed a
hand-written "Petition to Grant Leave to File Notice of Appeal."
Therein, Attorney Grogan claimed, without any supporting
documentation, that he had been unable to timely file an appeal
for health-related reasons.   Given both the unsupported nature
of Attorney Grogan's request and his tendency, shown amply in
the record, to offer unproven medical excuses for delay, we deny
his request.

                                             2
                                                                         No.        2012AP2361-D



suspended         for    60   days    for      misconduct        consisting             of     five

violations of trust account rules and one count of failing to

cooperate         with   an   OLR     investigation.             In     re     Disciplinary

Proceedings         Against     William        J.    Grogan,          2011     WI        7,     331

Wis. 2d 341, 795 N.W.2d 745.

       ¶5     Since March 7, 2011, Attorney Grogan's Wisconsin law

license has been suspended continuously.                         Attorney Grogan has

not satisfied certain conditions placed on the reinstatement of

his license following the 60-day disciplinary suspension imposed

in In re Disciplinary Proceedings Against William J. Grogan, 331

Wis. 2d 341,         ¶¶16,    18.      Attorney       Grogan's         license          is    also

presently suspended for failing to comply with continuing legal

education requirements and failing to pay bar dues.                            Finally, on

June 16, 2011, and on January 24, 2012, this court temporarily

suspended         Attorney    Grogan's      license       to   practice      law        for    his

willful failure to cooperate in two separate OLR investigations

concerning         certain    conduct       underlying         this    opinion.               These

temporary suspensions remain in effect.
       ¶6     The OLR's complaint against Attorney Grogan consists

of some 33 counts of misconduct committed in eight separate

client matters:           Charles B. (Counts 1-3); Clayton B. (Counts 4-

8); D.D. (Counts 9-11); L.J. (Counts 12-14); M.S.L. (Counts 15-

20);    J.J.M.      (Counts    21-26);       D.K.K.    (Counts        27-29);           and    C.T.

(Counts 30-33).           Attorney Grogan answered the complaint with a

general      denial      of   all    counts.        The    referee      held        a    six-day

hearing on this matter and received post-hearing briefing, after
which       the    referee    filed     a    93-page       report       concluding            that
                                              3
                                                                     No.    2012AP2361-D



Attorney       Grogan        had   committed      all     33      alleged    acts    of

professional misconduct.

       ¶7      Given the volume of the factual findings and legal

conclusions made by the referee, we do not repeat them all here.

It is sufficient to provide the following summary information

concerning the serious misconduct at issue in this matter.

       ¶8      The     OLR    alleged   and     the     referee     concluded    that,

contrary to SCR 20:1.3,2 Attorney Grogan willfully failed to act

with       diligence    and    promptness       during    his     representation     of

Clayton B. (Count 4), M.S.L. (Count 15), and D.K.K. (Count 27).

       ¶9      The     OLR    alleged   and     the     referee     concluded    that,

contrary       to    SCR      20:1.5(b)(3),3      Attorney      Grogan      improperly

retained funds in his trust account during his representation of

C.T. (Count 31).

       ¶10     The     OLR    alleged   and     the     referee     concluded    that,

contrary to SCR 20:1.15(b)(1),4 Attorney Grogan failed to hold in

trust, separate from his own property, the property of clients

       2
       SCR 20:1.3 states, "A lawyer shall act with reasonable
diligence and promptness in representing a client."
       3
       SCR 20:1.5(b)(3) states, "A lawyer shall promptly respond
to a client's request for information concerning fees and
expenses."
       4
           SCR 20:1.15(b)(1) states:

            Separate account.     A lawyer shall hold in trust,
       separate from the lawyer's own property, that property of
       clients and 3rd parties that is in the lawyer's possession
       in connection with a representation. All funds of clients
       and 3rd parties paid to a lawyer or law firm in connection
       with a representation shall be deposited in one or more
       identifiable trust accounts.

                                            4
                                                                No.     2012AP2361-D



and third persons in his possession during his representation of

J.J.M. (Count 21) and D.K.K. (Count 28).

      ¶11    The   OLR   alleged    and     the   referee      concluded        that,

contrary     to    SCR   20:1.15(d)(1),5      Attorney     Grogan       failed     to

promptly     disburse    funds   that   a   third      party   was    entitled     to

receive during his representation of J.J.M. (Count 22) and C.T.

(Count 30).

      ¶12    The   OLR   alleged    and     the   referee      concluded        that,

contrary to SCR 20:1.15(d)(2),6 Attorney Grogan failed to provide

a   full    written   accounting   of     funds   he    received      from     J.J.M.

(Count 23).

      ¶13    The   OLR   alleged    and     the   referee      concluded        that,

contrary     to    SCR   20:1.16(d),7       Attorney     Grogan       failed     upon

      5
          SCR 20:1.15(d)(1) provides:

           Notice and disbursement. Upon receiving funds or
      other property in which a client has an interest, or
      in which the lawyer has received notice that a 3rd
      party has an interest identified by a lien, court
      order, judgment, or contract, the lawyer shall
      promptly notify the client or 3rd party in writing.
      Except as stated in this rule or otherwise permitted
      by law or by agreement with the client, the lawyer
      shall promptly deliver to the client or 3rd party any
      funds or other property that the client or 3rd party
      is entitled to receive.
      6
       SCR 20:1.15(d)(2) states, "Accounting.        Upon final
distribution of any trust property or upon request by the client
or a 3rd party having an ownership interest in the property, the
lawyer shall promptly render a full written accounting regarding
the property."
      7
          SCR 20:1.16(d) provides:

           Upon termination of representation, a lawyer
      shall take steps to the extent reasonably practicable
                                        5
                                                                   No.    2012AP2361-D



termination      of    representation        of   Clayton    B.    to    refund    any

unearned portion of an advanced fee (Count 6).

     ¶14   The        OLR   alleged    and     the   referee      concluded       that,

contrary to SCR 20:3.4(c),8 Attorney Grogan knowingly disobeyed a

court order during his representation of J.J.M. (Count 24).

     ¶15   The        OLR   alleged    and     the   referee      concluded       that,

contrary to SCR 20:5.5(b)(2),9 Attorney Grogan held out to the

public or otherwise represented that he was admitted to practice

law at a time when his law license was suspended (Count 32).

     ¶16   The        OLR   alleged    and     the   referee      concluded       that,

contrary   to         SCR   20:8.4(c),10       Attorney     Grogan       engaged    in

dishonesty,      fraud,      deceit,    or     misrepresentation         during    his

representation of Charles B. (Count 2), Clayton B. (Count 7),

D.D. (Count 10), L.J. (Count 13), and M.S.L. (Count 18).

     to protect a client's interests, such as giving
     reasonable notice to the client, allowing time for
     employment of other counsel, surrendering papers and
     property to which the client is entitled and refunding
     any advance payment of fee or expense that has not
     been earned or incurred. The lawyer may retain papers
     relating to the client to the extent permitted by
     other law.
     8
       SCR 20:3.4(c) states that a lawyer shall not "knowingly
disobey an obligation under the rules of a tribunal, except for
an open refusal based on an assertion that no valid obligation
exists; . . . ."
     9
       SCR 20:5.5(b)(2) states that a lawyer who is not admitted
to practice in this jurisdiction shall not "hold out to the
public or otherwise represent that the lawyer is admitted to the
practice of law in this jurisdiction."
     10
       SCR 20:8.4(c) states it is professional misconduct for a
lawyer to "engage in conduct involving dishonesty, fraud, deceit
or misrepresentation; . . . ."

                                           6
                                                                               No.    2012AP2361-D



    ¶17       The     OLR    alleged             and     the     referee      concluded       that,

contrary to SCR 22.03(2),11 Attorney Grogan failed to fully and

fairly     disclose         to        the    OLR        all     facts    and     circumstances

pertaining       to    alleged          misconduct             that   occurred       during     his

representation of Clayton B. (Count 8), D.D. (Count 11), L.J.

(Count 14), M.S.L. (Count 20), and D.K.K. (Count 29).

    ¶18       The     OLR    alleged             and     the     referee      concluded       that,

contrary    to      SCR   22.03(2)           and       SCR    22.03(6),12     Attorney     Grogan

failed to fully and fairly disclose to the OLR all facts and

circumstances         pertaining            to    alleged       misconduct      that    occurred

during his representation of J.J.M. and C.T., and also willfully

failed   to    provide       relevant            information,         fully    and    truthfully

answer     questions,            or     furnish          documents      during       the      OLR's


    11
         SCR 22.03(2) states:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.     The
    respondent shall fully and fairly disclose all facts
    and circumstances pertaining to the alleged misconduct
    within 20 days after being served by ordinary mail a
    request for a written response.      The director may
    allow additional time to respond.     Following receipt
    of the response, the director may conduct further
    investigation and may compel the respondent to answer
    questions,   furnish   documents,   and   present   any
    information deemed relevant to the investigation.
    12
       SCR 22.03(6) states, "In the course of the investigation,
the respondent's wilful failure to provide relevant information,
to answer questions fully, or to furnish documents and the
respondent's misrepresentation in a disclosure are misconduct,
regardless of the merits of the matters asserted in the
grievance."

                                                   7
                                                                   No.   2012AP2361-D



investigation into his work on these same matters (Counts 25 and

33).

       ¶19    The    OLR   alleged   and      the     referee   concluded       that,

contrary to SCR 22.03(6), Attorney Grogan willfully failed to

provide      relevant      information,       fully    and   truthfully        answer

questions,      or   furnish   documents       in   the   course    of   the    OLR's

investigation into his representation of J.J.M. (Count 26).

       ¶20    The    OLR   alleged   and      the     referee   concluded       that,

contrary to SCR 22.26(1)(a) and (b),13 Attorney Grogan failed to

notify Clayton B. and M.S.L. by certified mail of his license

suspension and failed to advise them to seek legal advice of

their choice elsewhere (Counts 5 and 17).

       ¶21    The    OLR   alleged   and      the     referee   concluded       that,

contrary to SCR 22.26(1)(c),14 Attorney Grogan failed to promptly
       13
            SCR 22.26(1)(a) and (b) state:

            On or before the effective date of license
       suspension or revocation, an attorney whose license is
       suspended or revoked shall do . . . the following:

            (a) Notify by certified mail all clients being
       represented in pending matters of the suspension or
       revocation and of the attorney's consequent inability
       to act as an attorney following the effective date of
       the suspension or revocation.

            (b) Advise the clients to seek legal advice of
       their choice elsewhere.
       14
            SCR 22.26(1)(c) states:

            On or before the effective date of license
       suspension or revocation, an attorney whose license is
       suspended or revoked shall do . . . the following:

              . . . .

                                          8
                                                              No.    2012AP2361-D



provide written notification of his license suspension to the

circuit court in the M.S.L. matter (Count 19).

    ¶22    The    OLR    alleged      and   the   referee    concluded     that,

contrary   to    SCR    22.26(2),15    Attorney    Grogan    engaged      in   the

practice of law after his license had been suspended during his

representation of Charles B. (Count 1), D.D. (Count 9), L.J.

(Count 12), and M.S.L. (Count 16).

    ¶23    The    OLR    alleged      and   the   referee    concluded     that,

contrary   to    SCR   10.03(2),16    Attorney    Grogan    failed   to   report

changes to his office address to the State Bar (Count 3).

         (c) Promptly provide written notification to the
    court or administrative agency and the attorney for
    each party in a matter pending before a court or
    administrative agency of the suspension or revocation
    and of the attorney's consequent inability to act as
    an attorney following the effective date of the
    suspension or revocation.    The notice shall identify
    the successor attorney of the attorney's client or, if
    there is none at the time notice is given, shall state
    the client's place of residence.
    15
         SCR 22.26(2) provides as follows:

         An attorney whose license to practice law is
    suspended or revoked or who is suspended from the
    practice of law may not engage in this state in the
    practice of law or in any law work activity
    customarily done by law students, law clerks, or other
    paralegal personnel, except that the attorney may
    engage in law related work in this state for a
    commercial employer itself not engaged in the practice
    of law.
    16
         SCR 10.03(2) states as follows:

         Enrollment. Every person who becomes licensed to
    practice law in this state shall enroll in the state
    bar by registering his or her name and social security
    number with the association within 10 days after
                                        9
                                                                     No.     2012AP2361-D



      ¶24   After making a determination of misconduct as to all

33    counts      summarized       above,          the     referee    evaluated        the

appropriate       discipline       for     Attorney        Grogan.         The     referee

recommended      the    revocation       of    Attorney      Grogan's   law       license.

The   referee        wrote     that      Attorney        Grogan's    misconduct       was

"blatant."       He "grossly mistreated" his clients, many of whom

were financially challenged or otherwise vulnerable.                             Referring

to Attorney Grogan's conduct in representing L.J., the referee

wrote that "[w]e now have the spectacle of a suspended attorney,

a former district attorney, no less, meeting clients at Burger

King, taking their money, and essentially disappearing into the

night.         The      damage     done       to     the     profession       is     truly

incalculable."

      ¶25   The      referee     vigorously         rejected      Attorney        Grogan's

defenses    to    the    OLR's     allegations.             The   referee        variously

described Attorney Grogan's defenses as "entirely incredible,"

"riddled with inconsistency," "baseless," and "advanced without

a shred of supporting documentary evidence . . . , and in the
face of a mountain of contemporaneous written evidence to the

contrary."        The referee wrote that one of Attorney Grogan's

arguments      during    the     six-day      disciplinary        hearing    "literally



      admission to practice.   Every change after enrollment
      in any member's office address or social security
      number shall be reported promptly to the state bar.
      The social security number of a person enrolling in
      the state bar may not be disclosed to any person or
      entity except the supreme court and its agencies, or
      as otherwise provided by supreme court rules.

                                              10
                                                              No.    2012AP2361-D



destroyed any remaining credibility he possessed."                  The referee

also commented that Attorney Grogan's noncooperation with the

disciplinary process rose "to a level never before seen by this

referee.      [Attorney      Grogan]     has   made    engaging      in   basic

communication with him a monumental struggle.              The jobs of OLR

investigators,      Court   clerks,      and   even    this    referee        were

needlessly magnified by his avoidance behavior."

      ¶26   As mentioned above, the referee ultimately recommended

the revocation of Attorney Grogan's law license.                    The referee

wrote that "[w]hile it is almost unfathomable to think that an

attorney    would   risk    censure    over    such   trifling      amounts    as

[Attorney Grogan] took in this case, it is the blatant nature of

the violations, combined with a long pattern of unremorseful

behavior, which tips the scale."

      ¶27   Concerning monetary sanctions, the referee recommended

that Attorney Grogan be ordered to pay restitution as follows:

      •     Charles B. matter:        $300 to the State Bar's Wisconsin

Lawyers Fund for Client Protection ("Fund");
      •     Clayton B. matter:        $875 to the Fund;

      •     D.D. matter:     $220 to D.D.;

      •     L.J. matter:     $500 to the Fund;

      •     M.S.L. matter:     $65 to M.S.L.;

      •     J.J.M. matter:     $6,500 to the Fund, $1,000 to J.J.M.;

and

      •     C.T. matter:     $2,000 to C.T.'s mother, C.V.G.




                                       11
                                                    No.   2012AP2361-D



     ¶28    The referee also recommended that Attorney Grogan be

ordered to pay costs of $37,718.88, a figure which represents

costs through November 26, 2013.

     ¶29    The OLR did not appeal from the referee report, and,

as mentioned earlier,17 Attorney Grogan did not timely file an

appeal.     Accordingly, this court's review proceeds pursuant to

SCR 22.17(2).18      In conducting our review, we will affirm the

referee's findings of fact unless they are found to be clearly

erroneous, but we will review the referee's conclusions of law

on a de novo basis.      See In re Disciplinary Proceedings Against

Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125.         The

court may impose whatever sanction it sees fit regardless of the

referee's recommendation.      See In re Disciplinary Proceedings

Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

     ¶30    Based upon our review of the record, we approve and

adopt the referee's findings of fact and conclusions of law.       We

determine that the seriousness of Attorney Grogan's misconduct

demonstrates that his law license must be revoked to protect the
public, courts, and legal system from the repetition of the


     17
          See n.1.
     18
          SCR 22.17(2) provides:

          If no appeal is filed timely, the supreme court
     shall review the referee's report; adopt, reject or
     modify the referee's findings and conclusions or
     remand the matter to the referee for additional
     findings;   and   determine  and   impose  appropriate
     discipline.   The court, on its own motion, may order
     the parties to file briefs in the matter.

                                   12
                                                                    No.     2012AP2361-D



misconduct; to impress upon Attorney Grogan the seriousness of

his misconduct; and to deter other attorneys from engaging in

similar misconduct.            We also agree with and adopt the referee's

recommendation          that    Attorney        Grogan   be     ordered       to    pay

restitution and costs as described above.

       ¶31   IT IS ORDERED that the license of William J. Grogan to

practice law in Wisconsin is revoked, effective as of the date

of this order.

       ¶32   IT    IS    FURTHER    ORDERED      that    the    temporary      license

suspensions of June 16, 2011 and January 24, 2012, which arose

out of William J. Grogan's willful failure to cooperate with two

separate     OLR     grievance      investigations       in    this       matter,   are

lifted.

       ¶33   IT IS FURTHER ORDERED that within 60 days of the date

of    this   order      William    J.   Grogan     shall      pay   restitution      as

follows:

       •     Charles B. matter:         $300 to the Fund;

       •     Clayton B. matter:         $875 to the Fund;
       •     D.D. matter:         $220 to D.D.;

       •     L.J. matter:         $500 to the Fund;

       •     M.S.L. matter:         $65 to M.S.L.;

       •     J.J.M. matter:         $6,500 to the Fund, $1,000 to J.J.M.;

and

       •     C.T. matter:         $2,000 to C.T.'s mother, C.V.G.

       ¶34   IT IS FURTHER ORDERED that within 60 days of the date

of this order, William J. Grogan shall pay to the Office of
Lawyer Regulation the imposed costs of this proceeding.
                                           13
                                                   No.   2012AP2361-D



    ¶35    IT IS FURTHER ORDERED that the restitution specified

above is to be completed prior to paying costs to the Office of

Lawyer Regulation.

    ¶36    IT IS FURTHER ORDERED that William J. Grogan shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

revoked.

    ¶37    DAVID T. PROSSER, J., did not participate.




                                14
    No.   2012AP2361-D




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