2017 WI 5

SUPREME COURT OF WISCONSIN

CASE NO.: 2016AP684-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against David A. Lemanski, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

David A. Lemanski,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST LEMANSKI

OPINION FILED: February 1, 2017

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:
2017 WI 5

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2016AP684-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against David A. Lemanski, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

David A. Lemanski,

 Respondent.

FILED

FEB 1, 2017

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney publicly 

reprimanded. 

¶1 PER CURIAM. We review the report of Referee John 

Nicholas Schweitzer, which concluded that Attorney David A. 

Lemanski had committed three counts of professional misconduct 

and recommended (1) that the court publicly reprimand Attorney 

Lemanski, (2) that Attorney Lemanski's continued practice of law 

be conditioned on his payment of a sanction imposed by the Grant 

County circuit court, and (3) that Attorney Lemanski be ordered 

to pay the costs of this proceeding, which were $1,192.03 as of 
No. 2016AP684-D 

2

September 19, 2016. Because no appeal of this report has been 

filed, our review of this matter proceeds pursuant to Supreme 

Court Rule (SCR) 22.17(2).1 Ultimately, we conclude that a 

public reprimand and the imposition of a condition on Attorney 

Lemanski's practice of law in this state are appropriate forms 

of discipline in this matter. We further determine that 

Attorney Lemanski should be required to pay the full costs of 

this proceeding.

¶2 Attorney Lemanski was admitted to the practice of law 

in this state in October 2002. He most recently practiced law 

in Dubuque, Iowa.

¶3 Attorney Lemanski has been the subject of professional 

discipline in this state on one prior occasion. In March 2015 

this court suspended his license to practice law in Wisconsin 

for a period of 60 days, as discipline reciprocal to that 

imposed by the Supreme Court of Iowa. In re Disciplinary 

Proceedings Against Lemanski, 2015 WI 10, 360 Wis. 2d 643, 858 

N.W.2d 696. It does not appear that Attorney Lemanski's 

Wisconsin license was reinstated following that disciplinary 

suspension. There is no evidence that Attorney Lemanski 

 

1 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. 
No. 2016AP684-D 

3

complied with the applicable reinstatement requirements of 

SCR 22.28(2), including the filing of an affidavit with the 

Office of Lawyer Regulation (OLR) showing full compliance with 

all of the terms and conditions of this court's suspension 

order. In addition, Attorney Lemanski's license is also subject 

to two other suspensions. First, in October 2015 Attorney 

Lemanski's license was administratively suspended due to his 

failure to pay bar dues and assessments and his failure to 

complete the trust account certification. Second, on November 

4, 2015, this court temporarily suspended Attorney Lemanski's 

license due to his willful failure to cooperate with a grievance 

investigation conducted by the OLR. Office of Lawyer Regulation 

v. Lemanski, No. 2015XX1279-D, unpublished order (S. Ct. 

November 4, 2015).

¶4 The OLR commenced this action with the filing of a 

complaint alleging three counts of professional misconduct. 

Attorney Lemanski filed an answer admitting all of the 

allegations of the complaint. Consequently, the referee granted 

the OLR's motion for judgment on the pleadings. While Attorney 

Lemanski admitted the allegations of misconduct, he did not 

agree to the level of discipline sought by the OLR. As it had 

requested in its complaint, the OLR urged the referee to 

recommend the imposition of a public reprimand. Attorney 

Lemanski, on the other hand, asked that the reprimand be private 

in nature. As noted above, the referee agreed with the OLR that 

a public reprimand was the appropriate level of discipline.
No. 2016AP684-D 

4

¶5 Given Attorney Lemanski's admissions in his answer, 

the referee used the allegations of the OLR's complaint as his 

findings of fact. They are summarized below.

¶6 Counts 1 and 2 of the OLR's complaint relate to 

Attorney Lemanski's representation of S.K. in a legal separation 

proceeding. S.K. retained Attorney Lemanski in September 2014. 

In late November 2014 he informed Attorney Lemanski that he was 

terminating his services.

¶7 Attorney Lemanski did not notify opposing counsel that 

his representation of S.K. had been terminated. Accordingly, in 

early January 2015 opposing counsel sent a notice of deposition 

of S.K. to Attorney Lemanski, assuming that Attorney Lemanski 

was still representing S.K. Because Attorney Lemanski failed to 

forward the notice to him, S.K. did not appear at the 

deposition. 

¶8 On January 29, 2015, opposing counsel filed a motion 

to compel S.K.'s deposition and for other relief. On February 

11, 2015, Attorney Lemanski formally withdrew as S.K.'s counsel. 

¶9 On February 12, 2015, the judge in S.K.'s proceeding 

ordered Attorney Lemanski to pay $1,471.50 to the opposing party 

as reimbursement for its fees and costs related to the missed 

deposition and other missed discovery deadlines. Attorney 

Lemanski failed to pay the fees and costs as ordered.

¶10 In June 2015 the OLR sent a written notice to Attorney 

Lemanski advising him that it was investigating his conduct in 

the representation of S.K. and directing him to provide a 

response by July 27, 2015. On July 24, 2015, Attorney Lemanski 
No. 2016AP684-D 

5

asked for and was orally granted an extension of time until 

August 17, 2015, to submit his written response to the 

grievance. He was told that he should call the OLR if he needed 

more time to respond. Attorney Lemanski, however, did not 

submit a response nor did he ask for a further extension of 

time.

¶11 Consequently, on August 24, 2015, the OLR sent 

Attorney Lemanski a second letter requesting a response by 

September 4, 2015. Attorney Lemanski received the OLR's letter, 

but failed to respond.

¶12 In September 2015 the OLR moved the court for the 

temporary suspension of Attorney Lemanski's license under 

SCR 22.03(4) due to his willful failure to cooperate with the 

OLR's investigation. This court issued an order directing 

Attorney Lemanski to show cause why his license should not be 

temporarily suspended, but he did not respond to the order. 

Ultimately, on November 4, 2015, this court granted the OLR's 

motion and temporarily suspended Attorney Lemanski's license to 

practice law in this state.

¶13 Based on these facts, the referee concluded that 

Attorney Lemanski had committed two counts of professional 

misconduct. First, the referee determined that Attorney 

Lemanski's failure to pay the costs and fees of the opposing 

party as ordered by the circuit court had violated SCR 
No. 2016AP684-D 

6

20:3.4(c).2 Second, the referee concluded that Attorney 

Lemanski's failure to respond to the OLR's letters had violated 

SCR 22.03(2) and (6),3 which are enforced through SCR 20:8.4(h).4

¶14 Count 3 of the OLR's complaint stems from Attorney 

Lemanski's representation of L.A. in a divorce proceeding. 

 

2 SCR 20:3.4(c) provides: "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."

3 SCR 22.03 (2) and (6) provides:

(2) 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.

. . . .

(6) 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.

4 SCR 20:8.4(h) provides that it is professional misconduct

for a lawyer to "fail to cooperate in the investigation of a

grievance filed with the office of lawyer regulation as required

by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),

or SCR 22.04(1)."
No. 2016AP684-D 

7

Attorney Lemanski formally appeared for L.A. on November 7, 

2008, a little less than one month after the divorce proceeding 

had been initiated. The referee found that it was reasonably 

foreseeable at the time that the total cost of the 

representation would exceed $1,000. Indeed, Attorney Lemanski 

accepted a $2,000 advanced payment from L.A. at the start of the 

representation. Nonetheless, Attorney Lemanski never prepared a 

written fee agreement. 

¶15 Attorney Lemanski represented L.A. through a trial, 

through the entry of a judgment of divorce, and through the 

filing of a notice of appeal. On August 9, 2010, Attorney 

Lemanski withdrew as L.A.'s counsel. Attorney Lemanski billed 

for his services on an hourly basis. By the time he withdrew as 

counsel, the entire $2,000 advanced fee had been applied toward 

Attorney Lemanski's fees and expenses. Indeed, Attorney 

Lemanski later submitted an additional invoice to L.A. that 

exceeded $1,000.

¶16 On the basis of these facts, the referee determined 

that Attorney Lemanski's failure to complete a written fee 

agreement, despite his acceptance and use of a $2,000 advance 

fee and his submission of an additional invoice in excess of 

$1,000, had violated SCR 20:1.5(b)(1) and (2).5

 

5 SCR 20:1.5(b)(1) and (2) provides:

(1) The scope of the representation and the basis or 

rate of the fee and expenses for which the client will 

be responsible shall be communicated to the client in 

writing, before or within a reasonable time after 

(continued)
No. 2016AP684-D 

8

¶17 The referee noted that in light of Attorney Lemanski's 

admission of the OLR's factual allegations, the sole issue of 

dispute between the parties was the level of discipline to be 

imposed. The OLR sought a public reprimand, the conditioning of 

Attorney Lemanski's practice of law in this state on his payment 

of the $1,471.50 in fees and costs, as ordered by the circuit 

court, and a requirement that Attorney Lemanski pay the full 

costs of this disciplinary proceeding. Attorney Lemanski, on 

the other hand, argued that a private reprimand was the 

appropriate level of discipline.

¶18 The referee agreed with the OLR's request for a public 

reprimand. He noted that the purposes of imposing professional 

discipline include protecting the public from further misconduct 

by the respondent attorney, deterring other attorneys from 

engaging in similar misconduct, and rehabilitating the 

respondent attorney. The referee determined that a private 

 

commencing the representation, except when the lawyer 

will charge a regularly represented client on the same 

basis or rate as in the past. If it is reasonably 

foreseeable that the total cost of representation to 

the client, including attorney's fees, will be $1000 

or less, the communication may be oral or in writing. 

Any changes in the basis or rate of the fee or 

expenses shall also be communicated in writing to the 

client.

(2) If the total cost of representation to the client, 

including attorney's fees, is more than $1000, the 

purpose and effect of any retainer or advance fee that 

is paid to the lawyer shall be communicated in

writing.
No. 2016AP684-D 

9

reprimand would not sufficiently impress upon Attorney Lemanski 

the need to practice law competently and in accordance with his 

ethical obligations. The referee also believed that the 

imposition of a private reprimand on an attorney who had 

knowingly violated a court order and had knowingly chosen not to 

cooperate with an OLR investigation "would not adequately 

impress on other attorneys the need to follow the rules." 

Finally, the referee concluded that imposing a private reprimand 

would not have any rehabilitative effect on Attorney Lemanski.

¶19 The referee further agreed with the OLR that Attorney 

Lemanski should be required, as a condition of his practice of 

law in this state, to make the $1,471.50 payment as ordered by 

the circuit court. In its restitution statement, the OLR 

acknowledged that this amount is not really restitution because 

it is not the return of money held by the respondent attorney. 

Nonetheless, the OLR urged that payment of this award to the 

party opposing S.K. be included in the court's judgment as a way 

to reinforce the circuit court's order.

¶20 With respect to the issue of costs, the referee 

determined that there was no basis to deviate from the court's 

usual practice of imposing full costs on an attorney who is 

found to have committed professional misconduct. Although costs 

often are not imposed where a respondent attorney resolves the 

matter by stipulation prior to the filing of a complaint, in 

this case Attorney Lemanski chose not to enter into such a 

stipulation.
No. 2016AP684-D 

10

¶21 The standard we employ to review a referee's report 

and recommendation in an attorney disciplinary case is wellestablished. We affirm a referee's findings of fact unless they 

are found to be clearly erroneous, but we review the referee's 

conclusions of law on a de novo basis. In re Disciplinary 

Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 

740 N.W.2d 125. We determine the appropriate level of 

discipline to impose given the particular facts of each case, 

independent of the referee's recommendation, but benefiting from 

it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, 

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶22 In this instance, given Attorney Lemanski's admission 

of the allegations in the OLR's complaint, there is no dispute 

that the referee's factual findings are appropriate. Moreover, 

we conclude that those factual findings adequately support legal 

conclusions that Attorney Lemanski engaged in the three counts 

of professional misconduct with which he was charged.

¶23 The primary matter here that requires our 

consideration is the proper level of discipline to impose on 

Attorney Lemanski. We agree with the OLR and the referee that a 

private reprimand would not be sufficient under these 

circumstances and that a public reprimand is the appropriate 

level of discipline. See In re Disciplinary Proceedings Against 

Stobbe, 2015 WI 43, 362 Wis. 2d 69, 862 N.W.2d 152 (imposing 

public reprimand, based upon respondent attorney's stipulation 

of facts and misconduct, where attorney failed to proceed with 

diligence and failed to comply with court orders to file 
No. 2016AP684-D 

11

compliant briefs and to pay sanctions imposed for failing to do 

so). Here, there was misconduct in connection with two separate 

representations. Further, the misconduct involved the failure 

to obey a court order, which is a serious breach of an 

attorney's obligations as an officer of the court. Moreover, 

this is not the first time that Attorney Lemanski is being 

disciplined for professional misconduct. The earlier 60-day 

reciprocal suspension stemmed in part from failing to respond to 

a demand for information from the regulatory authorities in 

Iowa. His failure here to respond to the OLR's request for a 

response to its grievance investigation is therefore a 

continuing pattern of disregard toward his obligations to 

cooperate with grievance investigations. We conclude that a 

private reprimand in such circumstances would not sufficiently 

impress upon Attorney Lemanski the seriousness of his misconduct 

and the need for him to conform his conduct in the future to the 

Rules of Professional Conduct for Attorneys.

¶24 We turn next to the referee's recommendation that we 

require Attorney Lemanski to pay the opposing party's costs and 

fees in the amount of $1,471.50, as ordered by the court in 

S.K.'s legal separation proceeding. We agree with the OLR's 

observation that placing this condition on Attorney Lemanski's 

practice of law does not constitute a restitution award. 

Imposing such a condition would not require Attorney Lemanski to 

restore funds to the proper recipient of the funds, either a 

client or a third party. Nonetheless, we may require Attorney 

Lemanski to make this payment as a form of discipline that is 
No. 2016AP684-D 

12

designed to promote his compliance with the law and ethical 

obligations as an officer of the court. See SCR 21.16(1m)(d) 

and (e) (professional discipline may include the imposition of 

conditions on the attorney's continued practice of law and the 

imposition of monetary payments). It is an obvious maxim that 

an officer of the court must obey the lawful orders of the 

court. Accordingly, we direct Attorney Lemanski, as a condition 

of his practice of law in this state, to pay the opposing 

party's costs and fees in the S.K. matter in the amount of 

$1,471.50, as ordered by the circuit court. We differ from the 

referee's recommendation with respect to the time for Attorney 

Lemanski to accomplish this payment. Attorney Lemanski has 

already had almost two years to make this payment pursuant to 

the circuit court's order. We therefore require him to make the 

payment within the next 60 days rather than the 120-day period 

recommended by the referee.

¶25 We also require Attorney Lemanski to pay the full 

costs of this proceeding. There is no reason here to depart 

from our general practice of imposing costs on an attorney found 

to have committed professional misconduct. Although Attorney 

Lemanski did admit the factual allegations and charges of 

misconduct in the OLR's complaint, thereby avoiding the need for 

a disciplinary hearing, he chose not to enter a stipulation 

under SCR 22.12, which resulted in the OLR's drafting of a 

complaint and the appointment of a referee. He should be 

responsible for the associated costs of this proceeding.
No. 2016AP684-D 

13

¶26 Finally, we address the status of the temporary, 

disciplinary, and administrative suspensions that currently are 

imposed on Attorney Lemanski's license to practice law in this 

state. Because this opinion resolves the matter for which we 

previously imposed the temporary suspension due to Attorney 

Lemanski's failure to cooperate, we now lift that temporary 

suspension under SCR 22.03(4). Attorney Lemanski's license, 

however, remains subject to the previous disciplinary suspension 

and to the administrative suspension imposed due to his failure 

to pay bar dues and assessments and his failure to complete the 

trust account certification. Attorney Lemanski must complete 

the necessary steps to lift all such disciplinary and 

administrative suspensions before he will be entitled to 

practice law in this state again.

¶27 IT IS ORDERED that David A. Lemanski is publicly 

reprimanded for his professional misconduct.

¶28 IT IS FURTHER ORDERED that the November 4, 2015 

temporary suspension of David A. Lemanski's license to practice 

law in Wisconsin, due to his willful failure to cooperate with 

the grievance investigation in this matter by the Office of 

Lawyer Regulation, is lifted.

¶29 IT IS FURTHER ORDERED that the 60-day disciplinary 

suspension OF David A. Lemanski's license to practice law in 

Wisconsin will remain in effect until he complies with all of 

the requirements for reinstatement following a disciplinary 

suspension of less than six months and an order of reinstatement 

is issued. See SCR 22.28(2).
No. 2016AP684-D 

14

¶30 IT IS FURTHER ORDERED that the administrative 

suspension of David A. Lemanski's license to practice law in 

Wisconsin, due to his failure to pay mandatory bar dues and his 

failure to file a trust account certification, will remain in 

effect until each reason for the administrative suspension has 

been rectified pursuant to SCR 22.28(1).

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

of this order, as a condition of his practice of law in this 

state, Attorney Lemanski shall pay to the opposing party in the 

S.K. legal separation matter the amount of $1,471.50 in costs 

and fees, as ordered by the circuit court. When the payment has 

been made, Attorney Lemanski shall file with the clerk of this 

court and serve on the Office of Lawyer Regulation an affidavit 

attesting to the completion of the payment.

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

of this order, David A. Lemanski shall pay to the Office of 

Lawyer Regulation the costs of this proceeding, which are 

$1,192.03.

¶33 IT IS FURTHER ORDERED that the Director of the Office 

of Lawyer Regulation shall advise the court if there has not 

been full compliance with all conditions of this order.
No. 2016AP684-D 

1