2018 WI 71

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP1887-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Suzanne E. Kitto, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Suzanne E. Kitto,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST KITTO

OPINION FILED: June 19, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:
2018 WI 71

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP1887-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Suzanne E. Kitto, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Suzanne E. Kitto,

 Respondent.

FILED

JUN 19, 2018

Sheila T. Reiff

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. We review a referee's report and 

recommendation concluding that Attorney Suzanne E. Kitto 

violated the rules of professional conduct in connection with 

her representation of W.C. and C.C. The referee recommended 

that this court impose a 60-day suspension of Attorney Kitto's 

law license. We adopt the referee's findings of fact, 

conclusions of law, and recommendation regarding discipline. 

We impose the full costs in this matter, which total $1,310.32 
No. 2017AP1887-D 

2

as of April 17, 2018. We do not impose restitution, as the 

Office of Lawyer Regulation (OLR) has confirmed that Attorney 

Kitto has made full restitution to W.C. and C.C.

¶2 Attorney Kitto was admitted to practice law in 

Wisconsin in 1972. She has no disciplinary history.

¶3 On September 27, 2017, the OLR filed a complaint 

against Attorney Kitto alleging five counts of professional 

misconduct arising out of her representation of W.C. and C.C. 

Attorney Kitto filed an answer by which she admitted all but one 

of the OLR's factual allegations, affirmatively alleged certain 

additional facts, and admitted all five counts of misconduct. 

This court appointed William Eich to serve as the referee in the 

matter.

¶4 Attorney Kitto later entered into a stipulation by 

which she agreed that the referee could use the allegations of 

the complaint as a factual basis for the referee's determination 

of misconduct. The parties agreed to brief the issue of the 

appropriate level of discipline to be imposed for Attorney 

Kitto's misconduct.

¶5 After receiving briefing on the issue of discipline, 

the referee filed a report recommending a 60-day suspension of 

Attorney Kitto's law license. In noting that the parties had 

stipulated that the OLR complaint provided an adequate factual 

basis for a misconduct determination, the referee implicitly 

incorporated by reference the undisputed allegations in the 

OLR's complaint and deemed them established. The facts before 

us are, then, as follows.
No. 2017AP1887-D 

3

¶6 Starting in July 2013, Attorney Kitto represented W.C. 

and C.C with regard to collection work on a land contract. The 

other party to the land contract made the land contract payments 

to W.C. and C.C. through Attorney Kitto's office. W.C. and C.C. 

agreed that Attorney Kitto would collect ten percent of the land 

contract payments for her fees, and would apply the remainder of 

the payments to real estate taxes, the mortgage on the property, 

and property insurance. 

¶7 Attorney Kitto erred in her caretaking of W.C. and 

C.C.'s funds. She failed to hold in trust the land contract 

payments that she received on W.C. and C.C.'s behalf. She also 

converted approximately $10,000 of these payments to her 

personal use. 

¶8 Attorney Kitto made other trust fund-related 

violations. She deposited personal funds into her client trust 

account, ostensibly for later use in paying her own personal 

debts. Attorney Kitto also disbursed funds from her trust 

account when there were insufficient funds in the account to 

cover the disbursement. 

¶9 Based on the stipulated facts set forth above, 

Attorney Kitto conceded the following five counts of misconduct:

 Count 1: By failing to promptly deliver funds, 

which she collected in connection with her 

representation of W.C. and C.C., to W.C. and C.C. or 

to third parties for W.C. and C.C.'s benefit, 
No. 2017AP1887-D 

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Attorney Kitto violated former SCR 20:1.15(d)(1)1

and current SCR 20:1.15(e)(1).2 

 Count 2: By failing to hold in trust W.C. and 

C.C.'s funds that she collected in connection with 

her representation of W.C. and C.C., Attorney Kitto 

violated SCR 20:1.15(b)(1).3

 

1 Former SCR 20:1.15(d)(1), effective prior to July 1, 2016, 

provided:

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. 

2 Current SCR 20:1.15(e)(1) provides:

Upon receiving funds or other property in which a 

client has an interest, or in which a 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.

3 SCR 20:1.15(b)(1) provides:

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. 
No. 2017AP1887-D 

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 Count 3: By converting funds belonging to W.C. and 

C.C. for her own personal use, Attorney Kitto 

violated SCR 20:8.4(c).4 

 Count 4: By depositing and retaining funds 

belonging to her in her client trust account, 

Attorney Kitto violated former SCR 20:1.15(b)(3).5 

 Count 5: By disbursing funds from her trust account 

without the funds being available for disbursement, 

Attorney Kitto violated SCR 20:1.15(f)(4)(a).6

¶10 In its brief on sanctions to the referee, the OLR 

argued that a 60-day suspension is called for by certain of our 

prior cases. See, e.g., In re Disciplinary Proceedings Against 

Sarbacker, 2017 WI 86, 377 Wis. 2d 484, 901 N.W.2d 373 (lawyer 

with two previous private reprimands suspended for 60 days based 

on six counts of misconduct, including failing to hold 

garnishment funds belonging to clients in a trust account and 

misappropriating approximately $2,000 of those funds); In re 

Disciplinary Proceedings Against Lunde, 2016 WI 84, 372 

Wis. 2d 1, 886 N.W.2d 87 (lawyer with previous public reprimand 

suspended for 60 days based on five counts of misconduct, 

 

4 SCR 20:8.4(c) provides: "It is professional misconduct 

for a lawyer to engage in conduct involving dishonesty, fraud, 

deceit or misrepresentation."

5 Former SCR 20:1.15(b)(3), effective prior to July 1, 2016, 

provided: "No funds belonging to the lawyer or law firm, except 

funds reasonably sufficient to pay monthly account service 

charges, may be deposited or retained in a trust account."

6 SCR 20:1.15(f)(4)(a) provides: "A lawyer shall not 

disburse funds from any trust account unless the deposit from 

which those funds will be disbursed has cleared, and the funds 

are available for disbursement."
No. 2017AP1887-D 

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including failing to hold funds due to a beneficiary of a life 

insurance policy in a trust account, and maintaining a trust 

account balance that fell below the amount of funds received and 

to be held on behalf of the beneficiary); In re Disciplinary 

Proceedings Against Bartz, 2015 WI 61, 362 Wis. 2d 752, 864 

N.W.2d 881 (lawyer with previous private reprimand suspended for 

60 days based on five counts of misconduct, including failing to 

disburse settlement funds and failing to cooperate with an OLR 

investigation). 

¶11 In her brief to the referee, Attorney Kitto requested 

a public reprimand. She emphasized that she had experienced 

health difficulties during the time period in question, and that 

she had relied on her former assistant to ensure that client 

funds were being properly handled. 

¶12 The referee recommended a 60-day suspension of 

Attorney Kitto's license in his report. The referee wrote that 

other cases involving analogous misconduct "have had little 

trouble imposing a 60-day suspension, often . . . noting that 

harsh sanctions should be expected to follow as a warning to 

other lawyers that this type of conduct cannot be tolerated." 

The referee characterized Attorney Kitto's misconduct as serious 

indeed: W.C. and C.C. were individual clients, and Attorney 

Kitto converted a significant sum of their funds——over $10,000. 

The referee dismissed as factually unsupported Attorney Kitto's 

attempt to assign blame for her trust account-related problems 

to her former assistant. The referee also noted that, according 

to the OLR's brief on sanctions, it had taken Attorney Kitto's 
No. 2017AP1887-D 

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medical issues into account in formulating its recommendation 

for a 60-day suspension; thus, the referee did not assign 

additional weight to that factor. As mitigating factors, the 

referee noted that Attorney Kitto has not been previously 

disciplined; she has fully reimbursed W.C. and C.C.; and she 

cooperated with the OLR's investigation of the charges. Given 

these facts and the applicable precedent, the referee concluded 

that a 60-day suspension would be appropriate.

¶13 Neither party appealed the referee's report, so this 

matter is submitted to the court for review pursuant to 

SCR 22.17(2). We review a referee's findings of fact subject to 

the clearly erroneous standard. See In re Disciplinary 

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 

675 N.W.2d 747. We review the referee's conclusions of law de 

novo. Id. We determine the appropriate level of discipline 

independent 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.

¶14 We agree with the referee that a 60-day suspension is 

appropriate. We find our recent decision in Sarbacker, 377 

Wis. 2d 484, to be particularly instructive. Attorney 

Sarbacker's clients hired him to collect on a money judgment 

they had obtained against a tenant. Id., ¶¶5-6. After Attorney 

Sarbacker arranged for the debtor's wages to be garnished, he 

began receiving weekly garnishment checks on behalf of his 

clients. Id., ¶6. He deposited some of the checks, totaling 

$892.23, into his trust account, but then disbursed almost all 
No. 2017AP1887-D 

8

of those funds to himself or his law office rather than to his 

clients. Id., ¶13. He deposited other checks, totaling 

$1,273.49, directly into his operating account rather than 

disbursing the funds to his clients. Id. Attorney Sarbacker 

committed other misdeeds: he represented the clients pursuant 

to an unwritten contingent fee agreement; he failed to timely 

cooperate with the OLR; and he faced one count of misconduct 

based on his plea of no contest to unrelated misdemeanor charges 

filed against him. Id., ¶14. Focusing heavily on the 

conversion allegations, we imposed a 60-day suspension. Id., 

¶¶23-24. 

¶15 Sarbacker and this case are alike in important ways. 

Both Attorney Kitto and Attorney Sarbacker regularly received 

funds on behalf of their clients, and they regularly mishandled 

the funds in similar fashion, failing to faithfully hold them in 

trust and misappropriating some portion of them. 

¶16 To be sure, the two cases are not exactly alike. 

Attorney Sarbacker had a disciplinary history (two private 

reprimands), whereas Attorney Kitto does not. Attorney Kitto 

converted a significantly larger amount of funds than did 

Attorney Sarbacker. Attorney Sarbacker committed certain forms 

of misconduct that Attorney Kitto did not, and vice versa. 

¶17 In the end, however, we find the misconduct here to be 

sufficiently analogous to that in Sarbacker to justify the same 

suspension length: 60 days. This suspension length is also 

generally supported by other cases cited by the OLR to the 

referee. See, e.g., In re Disciplinary Proccedings Against 
No. 2017AP1887-D 

9

Lunde, 372 Wis. 2d 1; In re Disciplinary Proceedings Against 

Bartz, 362 Wis. 2d 752. 

¶18 We also deem it appropriate, as is our usual custom, 

to impose the full costs of this disciplinary proceeding on 

Attorney Kitto. 

¶19 Finally, because Attorney Kitto has made full 

restitution to W.C. and C.C., the OLR does not seek restitution, 

and we do not impose it.

¶20 IT IS ORDERED that Suzanne E. Kitto's license to 

practice law in Wisconsin is suspended for a period of 60 days, 

effective July 31, 2018.

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

of this order Suzanne E. Kitto shall pay to the Office of Lawyer 

Regulation the costs of this proceeding, which are $1,310.32 as 

of April 17, 2018. 

¶22 IT IS FURTHER ORDERED that, to the extent that she has 

not already done so, Suzanne E. Kitto shall comply with the 

provisions of SCR 22.26 concerning the duties of a person whose 

license to practice law in Wisconsin has been suspended.

¶23 IT IS FURTHER ORDERED that compliance with all 

conditions of this order is required for reinstatement. See SCR 

22.28(2).
No. 2017AP1887-D 

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