2018 WI 96

SUPREME COURT OF WISCONSIN

CASE NO.: 2017AP411-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Michele A. Tjader, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Michele A. Tjader,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST TJADER

OPINION FILED: October 16, 2018

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED: A.W. BRADLEY, J., dissents, joined by 

ABRAHAMSON, J.

NOT PARTICIPATING: DALLET, J., did not participate. 

ATTORNEYS:
2018 WI 96

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2017AP411-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Michele A. Tjader, Attorney at Law:

Office of Lawyer Regulation, 

Complainant 

v.

Michele A. Tjader, 

Respondent. 

FILED

OCT 16, 2018

Sheila T. Reiff

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney publicly 

reprimanded. 

¶1 PER CURIAM. We review the supplemental report filed 

by Referee John Nicholas Schweitzer, adopting an amended 

stipulation entered between the Office of Lawyer Regulation 

(OLR) and Attorney Michele A. Tjader. 

¶2 After careful review, we accept the referee's 

recommendation and parties' stipulation wherein Attorney Tjader 

stipulates that she does not contest six counts of misconduct 

alleged in the OLR's complaint and the OLR seeks dismissal of 

three counts. We agree with the parties and the referee that a 
No. 2017AP411-D 

2

public reprimand is an appropriate level of discipline for 

Attorney Tjader's misconduct, that restitution is not required,

and that Attorney Tjader should be assessed the full costs of 

the proceeding, which are $3,298.19 as of June 26, 2018.

¶3 Attorney Tjader was admitted to practice law in 

Wisconsin in 1996. She practices in Madison. She has been 

disciplined by this court on three prior occasions. In 2002, we 

publicly reprimanded Attorney Tjader for lack of competence, 

lack of diligence, failing to comply with reasonable requests 

for information, failing to promptly return an advance payment 

of fees that had not been earned, and conduct involving 

dishonesty, deceit, and misrepresentation. In re Disciplinary 

Proceedings Against Tjader 2002 WI 37, 252 Wis. 2d 94, 643 

N.W.2d 87. In 2006, Attorney Tjader received a private 

reprimand for failing to comply with reasonable requests for 

information and failing to explain a matter to the extent 

reasonably necessary to permit the client to make informed 

decisions regarding the representation. Private Reprimand No. 

2006-2 (electronic copy available at 

https://compendium.wicourts.gov/app/raw/001855.html). In 2014, 

Attorney Tjader received another private reprimand for 

committing a criminal act that reflected adversely on her 

honesty, trustworthiness or fitness as a lawyer in other 

respects as a result of being convicted of operating while 

intoxicated (OWI) – second offense. Private Reprimand No. 

2014-20 (electronic copy available at https://compendium. 

wicourts.gov/app/raw/002709.html). 
No. 2017AP411-D 

3

¶4 This disciplinary proceeding commenced on March 7, 

2017, when the OLR filed a complaint alleging that Attorney 

Tjader committed nine counts of professional misconduct 

involving three clients.1 The OLR initially recommended a 60-day 

suspension and that Attorney Tjader be ordered to pay 

restitution in one client matter, for failure to reimburse an 

expert for an accident report. During the course of litigation, 

the OLR concluded that it would not be able to meet its burden 

of proof as to three of the nine alleged counts. Accordingly, 

the OLR reduced the recommended sanction to a public reprimand. 

¶5 On January 22, 2018, the parties executed an initial 

stipulation in which the OLR recommended dismissal of three 

counts, Attorney Tjader stated she did not contest the remaining 

six counts, and the parties agreed a public reprimand was 

appropriate. However, this stipulation failed to address 

restitution. 

¶6 The referee issued a report on February 13, 2018, in 

which he accepted the recommendations in the stipulation but 

further recommended that this court order Attorney Tjader to 

refund each of the three clients the full amount of fees paid, 

an amount that would exceed $34,000. He recommended the court 

 

1 Attorney Tjader initially failed to respond to the 

complaint and the OLR filed a Motion for Default Judgment.

However, Attorney Tjader eventually responded, a referee was 

appointed, and discovery and further investigation ensued.
No. 2017AP411-D 

4

place the burden on Attorney Tjader to demonstrate what, if 

anything, she earned if she wanted to reduce this amount. 

¶7 After the referee's initial report was filed, the OLR 

filed a restitution statement stating that it does not seek 

restitution in this matter because restitution with respect to 

the first two clients was "not reasonably ascertainable" and the 

OLR had determined that the expert who prepared the accident 

report has since been paid.2 In view of this discrepancy, we 

remanded the matter with directions to the parties to amend 

their stipulation to address restitution and directed the OLR to 

explain the basis for the recommended discipline. 

¶8 An amended stipulation was filed on May 8, 2018. In 

the amended stipulation the OLR again recommends the court 

dismiss three of the alleged counts of misconduct. Attorney 

Tjader states that she does not contest the remaining six 

misconduct counts, which alleged violations of former 

 

2 The OLR's policy is to seek restitution only when:

(1) There is a reasonably ascertainable amount;

(2) The funds to be restored were in the

respondent lawyer's direct control;

(3) The funds to be restored do not constitute 

incidental or consequential damages; and

(4) The grievant's or respondent's rights in a 

collateral proceeding will not likely be prejudiced.
No. 2017AP411-D 

5

SCR 20:1.15(b)(4m)b3 and SCR 20:1.16(d),4 stemming from her 

representation of three clients.

 

3 Effective July 1, 2016, substantial changes were made to 

Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct. 

Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because 

the conduct underlying this case arose prior to July 1, 2016, 

unless otherwise indicated, all references to the supreme court 

rules will be to those in effect prior to July 1, 2016.

Former SCR 20:1.15(b)(4m)b provided:

A lawyer who accepts advanced payments of fees 

may deposit the funds in the lawyer's business 

account, provided that review of the lawyer's fee by a 

court of competent jurisdiction is available in the 

proceeding to which the fee relates, or provided that 

the lawyer complies with each of the following 

requirements:

b. Upon termination of the representation, the 

lawyer shall deliver to the client in writing all of 

the following:

1. a final accounting, or an accounting from the 

date of the lawyer's most recent statement to the end 

of the representation, regarding the client's advanced 

fee payment with a refund of any unearned advanced 

fees; 

2. notice that, if the client disputes the amount 

of the fee and wants that dispute to be submitted to 

binding arbitration, the client must provide written 

notice of the dispute to the lawyer within 30 days of 

the mailing of the accounting; and 

3. notice that, if the lawyer is unable to 

resolve the dispute to the satisfaction of the client 

within 30 days after receiving notice of the dispute 

from the client, the lawyer shall submit the dispute 

to binding arbitration.

4 SCR 20:1.16(d) provides:

Upon termination of representation, a lawyer 

shall take steps to the extent reasonably practicable 

(continued)
No. 2017AP411-D 

6

¶9 The relevant facts are as follows. In 2013 and 2014, 

Attorney Tjader represented N.B. in a criminal OWI matter; K.D. 

in a civil OWI matter; and L.H. in a felony matter. Each of 

those clients paid advance fees to Attorney Tjader. N.B. paid 

Attorney Tjader $3,500 in advanced fees, K.D. paid her $4,500,

and L.H. paid her $25,000. Attorney Tjader deposited all these 

fees directly into her business account. Nevertheless, at the 

conclusion of her representation of each client, Attorney Tjader 

failed to provide them with the notices required under former 

SCR 20:1.15(b)(4m)b. Attorney Tjader also failed to provide 

each of the clients with a refund of unearned fees, if any, or 

sufficient information to show that no such refund was owing, in 

violation of SCR 20:1.16(d). 

¶10 In the amended stipulation, Attorney Tjader avers that 

the stipulation did not result from plea-bargaining, that she 

does not contest the facts and misconduct alleged by the OLR in 

counts 2, 3-5, and 8-9, and that the facts alleged in the 

complaint form a basis for the discipline requested. Attorney 

Tjader further represents that she fully understands the 

misconduct allegations; fully understands the ramifications 

 

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. 
No. 2017AP411-D 

7

should this court impose the stipulated level of discipline; 

fully understands her right to contest the matter; fully 

understands her right to consult with counsel; that her entry 

into the stipulation is made knowingly and voluntarily; and that 

the stipulation represents her decision not to contest the level 

and type of discipline sought by the OLR director.

¶11 The referee filed a supplemental report on May 31, 

2018, adopting the stipulation. The referee agreed that a 

public reprimand was an appropriate sanction for the misconduct 

described above, and acceded to the parties' recommendation that 

no restitution is warranted.

¶12 No appeal has been filed so we review this matter 

pursuant to SCR 22.17(2).5 A referee's findings of fact are 

affirmed unless clearly erroneous. Conclusions of law are 

reviewed de novo. See In re Disciplinary Proceedings Against 

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. 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. 

 

5 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. 2017AP411-D 

8

¶13 There is no showing that any of the referee's findings 

of fact, based on the parties' amended stipulation, are clearly 

erroneous. Accordingly, we adopt them. We agree that dismissal 

of counts 1, 6, and 7 is appropriate, and we agree that Attorney 

Tjader violated supreme court rules noted above.6 

¶14 With respect to the appropriate sanction, this court 

follows a general policy of progressive discipline. In re 

Disciplinary Proceedings Against Nussberger, 2006 WI 111, 296 

Wis. 2d 47, 719 N.W.2d 501. Attorney Tjader's record of three 

previous reprimands makes another public reprimand somewhat 

lenient, but we are persuaded by the referee's recommendation. 

¶15 The referee observed that Attorney Tjader's failure to 

comply with SCR 20:1.15(b)(4m)b "amounted to technical 

violations of essentially a failure to provide appropriate 

notice to her clients" citing In re Disciplinary Proceedings 

Against Rajek, 2015 WI 18, 361 Wis. 2d 60, 859 N.W.2d 439. In 

light of this precedent, the referee agreed that, 

notwithstanding the policy of progressive discipline, a public 

reprimand is appropriate here. See In re Disciplinary 

 

6 We dismiss counts 1, 6, and 7 of the OLR complaint, which 

alleged that: by failing to take steps to accurately ascertain 

the status of the matter after receiving N.B.'s inquiries into 

the status of her driver's license, and by failing to take any 

steps to mitigate the consequences of the untimely filed demand 

for a refusal hearing, Attorney Tjader violated SCR 20:1.3 

(Diligence) (Count 1); by failing to timely address the 

restitution issue after L.H.'s sentencing, Attorney Tjader 

violated SCR 20:1.3 (Count 6); and by failing to inform L.H. 

that a restitution order had been issued by the court, Attorney 

Tjader violated SCR 20:1.4(a)(3) (Communication) (Count 7). 
No. 2017AP411-D 

9

Proceedings Against Shepherd, 2017 WI 66, 376 Wis. 2d 129, 897 

N.W.2d 44 (concluding a public reprimand was warranted where, in 

addition to other allegations, an attorney failed to provide 

notices and refunds of unearned fees); In re Disciplinary 

Proceedings Against Smead, 2013 WI 19, 345 Wis. 2d 625, 827 

N.W.2d 81 (imposing a public reprimand for seven counts of 

misconduct including failing to deposit fees into a trust 

account and failing to return unearned fees). 

¶16 The OLR assured the court in its memorandum in support 

of the amended stipulation that it carefully considered Attorney 

Tjader's disciplinary history when determining the OLR's 

recommendation for a public reprimand. Consistent with Rajek, 

Attorney Tjader's misconduct in these matters, absent her 

disciplinary history, might have warranted a diversion or 

private reprimand. The OLR explains that it maintained pursuit 

of a public reprimand, rather than private discipline, precisely 

because of Attorney Tjader's disciplinary history. 

¶17 Moreover, with respect to restitution, although the 

parties have stipulated that Attorney Tjader violated 

SCR 20:1.16(d), the OLR does not dispute that Tjader performed 

the services each of these clients hired her to do. The OLR 

notes that to the extent that any of these clients believe the 

fees they were charged were not reasonable, the State Bar of 

Wisconsin offers fee arbitration to address such concerns. In 

the amended stipulation, Attorney Tjader has explicitly 

confirmed her willingness to participate in fee arbitration if 
No. 2017AP411-D 

10

initiated by any of her clients and has agreed that she would 

comply with any arbitration award.

¶18 Finally, we agree with the referee that, consistent 

with our general policy, Attorney Tjader should be required to 

pay the full costs of the proceeding, which are $3,298.19.

SCR 22.24(1m).

¶19 IT IS ORDERED that Michele A. Tjader is publicly 

reprimanded for professional misconduct. 

¶20 IT IS FURTHER ORDERED that, as stipulated, Michele A. 

Tjader shall submit any fee dispute, if pursued by any of the 

three grievants noted in this decision, to binding fee 

arbitration before the State Bar of Wisconsin Fee Arbitration

Program and shall comply with any arbitration award.

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

of this order, Michele A. Tjader shall pay to the Office of 

Lawyer Regulation the costs of this proceeding, which are 

$3,298.19 as of June 26, 2018. 

¶22 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.

¶23 REBECCA FRANK DALLET, J., did not participate.
No. 2017AP411-D.awb

1

¶24 ANN WALSH BRADLEY, J. (dissenting). In spite of 

Attorney Tjader having received three prior reprimands, the 

court imposes yet another reprimand.1 Accepting the 

recommendation of the referee, which in turn accepted the 

amended stipulation of the parties, it determines that a public 

reprimand is appropriate.

¶25 In justifying its decision, the court apparently is 

persuaded by the Office of Lawyer Regulation's (OLR) assurance 

that a public reprimand is the correct level of discipline. See

per curiam, ¶16. I am not persuaded by OLR's assurance. 

Instead, for the reasons set forth below, I would impose 

progressive discipline and place the onus on Attorney Tjader to 

demonstrate that no restitution is required.

¶26 First, the opinion of this court states that "the OLR 

assured the court in its memorandum in support of the amended 

stipulation that it carefully considered Attorney Tjader's 

disciplinary history when determining OLR's recommendation for a 

public reprimand." Part of that disciplinary history includes a 

private reprimand issued by OLR——not this court——for a second 

offense OWI.2

 

1 Attorney Tjader was publicly reprimanded in 2002, and 

privately reprimanded in 2006 and 2014.

2 SCR 22.05(1)(c) provides that: "Upon completion of an 

investigation, the director may do one or more of the 

following: . . . Obtain the respondent's consent to the 

imposition of a public or private reprimand and proceed under 

SCR 22.09."
No. 2017AP411-D.awb

2

¶27 I thought that we were long since past the time of 

addressing multiple OWI convictions (a criminal offense) by 

imposing merely a private reprimand. See e.g., In re 

Disciplinary Proceedings Against Horsch, 2017 WI 105, ¶23, 378 

Wis. 2d 554, 905 N.W.2d 129 (explaining that "multiple OWI 

convictions are unquestionably a serious failing that 'reflects 

adversely on [an attorney's] fitness as a lawyer in other 

respects.'") The OLR's assurance that "it carefully considered"

Attorney Tjader's disciplinary history when making this 

recommendation for a public reprimand rests on what appears to 

be the misguided foundation of OLR's private reprimand for her 

prior criminal conviction.

¶28 Second, the OLR seems to be taking a statement by this 

court regarding progressive discipline and turning it on its 

head. As justification for going along with the stipulation, 

the referee in this case observed that OLR apparently took the 

position that because Attorney Tjader's prior misconduct did not 

involve the same violations asserted here, that progressive 

discipline need not be imposed. For this dubious proposition it 

relied on our statement recognizing that progressive discipline 

should be followed, especially in cases of repeated violations 

of the same code provision. In re Disciplinary Proceedings 

Against Nussberger, 2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 

501. Somehow, the OLR apparently now relies on this statement 

as a justification to not impose progressive discipline when 

there are violations of different code provisions.
No. 2017AP411-D.awb

3

¶29 Finally, the OLR's position on restitution is 

misguided. It places the onus for professional misconduct on 

the victim of that misconduct rather than on the attorney 

engaging in the misconduct. We recently advised the OLR of the 

error of its ways in Matter of Med. Incapacity Proceedings 

Against Muwonge, 2017 WI 12, ¶23, 373 Wis. 2d 173, 890 

N.W.2d 575 (explaining that restitution "may be reduced by any 

amount that [the] [a]ttorney [] can establish, to the 

satisfaction of the OLR, represents the value of legal services 

he actually performed for [the client].").

¶30 Accordingly, I respectfully dissent.

¶31 I am authorized to state that Justice SHIRLEY S. 

ABRAHAMSON, joins this dissent.
No. 2017AP411-D.awb

1