2013 WI 44

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP406-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings

Against

William F. Mross , Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

William F. Mross,

Respondent.

DISCIPLINARY PROCEEDINGS AGAINST MROSS

OPINION FILED: May 17, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:
2013 WI 44

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2012AP406-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings

Against William F. Mross, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

William F. Mross,

Respondent.

FILED

MAY 17, 2013

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. We review the supplemental report and

recommendation of the referee, Michael F. Dubis, finding that

William F. Mross violated the Wisconsin Rules of Professional

Conduct for Attorneys and recommending that Attorney Mross's

license to practice law in Wisconsin be suspended for 60 days

and that he be required to pay the costs of this proceeding.
No. 2012AP406-D

2

¶2 Because no appeal has been filed, we review the

referee's report pursuant to SCR 22.17(2).

1 After conducting an

independent review of the matter, we adopt the referee's

findings of fact and supplemental conclusions of law, and we

agree with the referee's supplemental recommendation that

Attorney Mross's license to practice law be suspended for a

period of 60 days. We also agree that Attorney Mross should be

required to pay the full costs of the proceeding, which were

$5,973.98 as of December 17, 2012.

¶3 Attorney Mross was admitted to practice law in

Wisconsin in 1975 and practices in Racine. He has been subject

to professional discipline on four prior occasions. In 2003,

his license was suspended for 90 days for violating SCR

20:8.4(b)

2 by delivering cigarettes to inmates at the Racine

County jail, in violation of Wis. Stat. § 302.095(2). In re

Disciplinary Proceedings Against Mross, 2003 WI 4, 259

Wis. 2d 8, 657 N.W.2d 342. In 2004, he was privately

reprimanded for failing to competently represent, communicate

1 SCR 22.17(2) states:

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.

2 SCR 20:8.4(b) states it is professional misconduct for a

lawyer to "commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a lawyer in

other respects; . . . ."
No. 2012AP406-D

3

with, and keep informed clients in the defense of a foreclosure

matter. Private Reprimand, No. 2004-11. In 2006, he was

publicly reprimanded for failing to diligently represent,

communicate with, and keep clients informed in foreclosure

matters; and accepting compensation for representing those

clients from a non-attorney offering debt relief, without the

clients' consent. Public Reprimand of William F. Mross,

No. 2006-10. In 2010, he was publicly reprimanded for

practicing law while administratively suspended for

noncompliance with continuing legal education (CLE) requirements

and failing to disclose to the Board of Bar Examiners (BBE) or

the Office of Lawyer Regulation (OLR) his practice activities

while suspended, and for providing improper financial assistance

to clients when he made a bankruptcy plan payment for them out

of his own funds. Public Reprimand of William F. Mross,

No. 2010-5.

¶4 The instant matter involves Attorney Mross's

representation of two clients in foreclosure and bankruptcy

proceedings. In September 2006 D.Y. and S.Y. retained Attorney

Mross to represent them in a mortgage foreclosure action. D.Y.

and S.Y. had been referred to Attorney Mross by Kent Arney, a

paralegal, who solicits foreclosure defendants and offers them

assistance in handling their foreclosure matters. In October of

2006, the Racine County circuit court granted a default judgment

of foreclosure against D.Y. and S.Y.

¶5 In April of 2007, D.Y. and S.Y., represented by

Attorney Mross, filed a Chapter 13 bankruptcy action in the
No. 2012AP406-D

4

Eastern District of Wisconsin. On December 20, 2007, the

bankruptcy court notified D.Y. and S.Y. and Attorney Mross of

financial management course requirements that were a condition

precedent to obtaining a discharge. On January 28, 2008, the

bankruptcy trustee moved to convert the bankruptcy to a Chapter

7 proceeding. The bankruptcy court granted the trustee's motion

to convert the matter to a Chapter 7 proceeding on February 5,

2008.

¶6 The meeting of creditors occurred on March 31, 2008.

Since D.Y. and S.Y. were then in a Chapter 7 proceeding, they

had approximately 60 days thereafter to file a certification

with the bankruptcy court confirming that they successfully

completed an approved financial management course.

¶7 Attorney Mross's license to practice law was suspended

from May 27, 2008 until July 15, 2008, due to his failure to

meet his CLE obligations.

¶8 As of May 31, 2008, D.Y. and S.Y. had met all

requirements for bankruptcy discharge, except for filing the

financial management course completion certification. D.Y. and

S.Y. did not complete the course requirement, nor did Attorney

Mross remind them to do so at any time before the May 30, 2008

course completion certification filing deadline.

¶9 On July 22, 2008, the bankruptcy court closed D.Y. and

S.Y.'s case without discharge because the required certification

of financial management course completion had not been filed.

The closing notice was sent to both D.Y. and S.Y. and Attorney

Mross. Upon receiving the case closing notice, D.Y. and S.Y.
No. 2012AP406-D

5

enrolled in a financial management course, which they completed

on August 17, 2008. D.Y. and S.Y. also contacted Attorney Mross

and asked him to reopen their bankruptcy proceeding.

¶10 On October 1, 2008, Attorney Mross filed a motion in

the Racine County foreclosure action seeking to cancel the

sheriff's sale which had been scheduled after the non-discharge

closure of the bankruptcy matter. On October 3, 2008, Attorney

Mross sent D.Y. and S.Y. a bill for $500 for this work. On

November 18, 2008, the circuit court vacated the foreclosure

judgment and dismissed the action without prejudice.

¶11 Over the course of the next year, D.Y. and S.Y.

contacted Attorney Mross periodically by e-mail to ask about

reopening their bankruptcy. Each time, Attorney Mross gave a

different excuse for why he had not filed a motion to reopen the

case, and eventually told them not to communicate with him by email because his computer was not working.

¶12 On November 20, 2009, S.Y. filed a grievance against

Attorney Mross with the OLR.

¶13 On January 4, 2010, Attorney Mross moved to reopen

D.Y. and S.Y.'s bankruptcy and filed documents, including D.Y.

and S.Y.'s financial management course completion certificates.

On February 17, 2010, the bankruptcy court reopened the case and

accepted the course completion certifications. In granting the

motion to reopen, the bankruptcy court commented that while D.Y.

and S.Y. had acted promptly to take the course and obtain the

completion certificate, it was only due to Attorney Mross's

suspended license and his subsequent failure to act promptly
No. 2012AP406-D

6

that 18 months had elapsed before the motion to reopen the

bankruptcy case was filed. On February 18, 2010, the bankruptcy

court entered an order granting D.Y. and S.Y. a discharge.

¶14 On February 27, 2012, the OLR filed a complaint

alleging the following counts of misconduct with respect to

Attorney Mross's handling of D.Y. and S.Y.'s bankruptcy case:

[COUNT I:] By failing to ensure that his clients

met all the requirements for discharge in their

bankruptcy, and by failing for eighteen (18) months to

seek the reopening of his clients' bankruptcy, Mross

violated SCR 20:1.3.

3

[COUNT II:] By failing to keep his clients

informed about the status of their bankruptcy and

their requirements for discharge, Mross violated SCR

20:1.4(a)(3).

4

¶15 The OLR's complaint also alleged that Attorney Mross

engaged in professional misconduct with respect to his

representation of L.B. and P.B. In 2008, L.B. and P.B. were

experiencing debt management problems and in November 2008 their

mortgage lender filed a foreclosure action against them in Rock

County circuit court. Shortly after the foreclosure action was

filed, L.B. and P.B. received a solicitation letter from

paralegal Kent Arney offering "to discuss alternatives for a

quick resolution." L.B. and P.B. called Arney and hired him

over the phone and agreed to pay him $1,800. L.B. and P.B. paid

$600 to Arney and they also paid a total of $1,200 to Attorney

3 SCR 20:1.3 states "[a] lawyer shall act with reasonable

diligence and promptness in representing a client."

4 SCR 20:1.4(a)(3) states a lawyer shall "keep the client

reasonably informed about the status of a matter; . . . ."
No. 2012AP406-D

7

Mross. L.B. and P.B. gave Arney the information and

documentation needed to file a Chapter 13 bankruptcy petition.

They never directly hired Attorney Mross. Instead, Arney told

L.B. and P.B. that Attorney Mross would be helping him with the

case. There was no written fee agreement between Attorney Mross

and L.B. and P.B.

¶16 Attorney Mross filed an answer in the foreclosure case

on L.B. and P.B.'s behalf on March 9, 2009. L.B. and P.B. had

not met with Attorney Mross prior to this time. On June 16,

2009, the lender moved for judgment in the foreclosure action,

which the circuit court granted on July 17, 2009. The judgment

provided for a six-month redemption period. During the

redemption period the debtor is entitled to pay off the amount

due and keep the home. Once the redemption period is over, a

sheriff's sale of the property occurs.

¶17 Attorney Mross had little, if any, contact with L.B.

and P.B. during the redemption period. A sheriff's sale of L.B.

and P.B.'s residence occurred, and the report of the sheriff's

sale was filed on January 21, 2010.

¶18 On January 19, 2010, Attorney Mross filed a Chapter 13

bankruptcy action on behalf of L.B. and P.B. Later that day the

clerk of the bankruptcy court notified Attorney Mross that he

had failed to file numerous required documents with L.B. and

P.B.'s bankruptcy petition. The notice indicated the deadline

to submit the missing documents was February 2, 2010. Attorney

Mross failed to file the missing documents by that date. On

February 3, 2010, the bankruptcy trustee moved to dismiss L.B.
No. 2012AP406-D

8

and P.B.'s bankruptcy petition for failure to file the missing

documents. On February 24, 2010, Attorney Mross moved to

convert L.B. and P.B.'s bankruptcy to a Chapter 7 proceeding.

The bankruptcy court granted the conversion on February 25,

2010.

¶19 The conversion to a Chapter 7 proceeding moved the

deadline for filing the required documentation to April 10,

2010, and moved the meeting of creditors to April 20, 2010.

Attorney Mross filed some but not all of the required documents,

which were received by the bankruptcy court on April 19, 2010.

The creditors' meeting was rescheduled to May 17, 2010.

Attorney Mross had no contact with L.B. and P.B. between

January 29, 2010 and his filing of the incomplete information on

April 19, 2010.

¶20 On May 14, 2010, the bankruptcy trustee moved to

dismiss L.B. and P.B.'s bankruptcy for failure to file certain

documents. On May 17, 2010, Attorney Mross and L.B. and P.B.

appeared for the meeting of creditors. At the meeting, L.B. and

P.B. testified that Attorney Mross had not requested the

relevant documents from L.B. and P.B. The meeting of creditors

was therefore continued to June 1, 2010.

¶21 Immediately after the May 17, 2010 meeting of

creditors, Attorney Mross requested that L.B. and P.B. pay him

the second and final $600 installment payment toward his $1,200

fee, and L.B. and P.B. did so. On May 25, 2010, Attorney Mross

sent L.B. and P.B. documents from the foreclosure action

indicating that the creditor had moved the bankruptcy court for
No. 2012AP406-D

9

relief from the automatic stay. The bankruptcy trustee

initially objected to the creditor's request but later withdrew

the objection. On May 4, 2010, the bankruptcy court relieved

the creditor from the stay. Attorney Mross did not file any

documents with the bankruptcy court between the May 17, 2010

meeting of creditors and the June 1, 2010 continued meeting.

¶22 At the continued meeting of creditors on June 1, 2010,

L.B. and P.B. appeared and filed the missing documents.

Attorney Mross did not appear at the continued meeting and

advised the trustee's office by telephone that he had not

appeared due to a scheduling conflict.

¶23 On June 4, 2010, the bankruptcy trustee withdrew the

motion to dismiss, noting that L.B. and P.B. had filed the

required documentation with the bankruptcy court. On June 7,

2010, Attorney Mross filed an objection to the motion to

dismiss. By this time L.B. and P.B. had already submitted the

requested documentation and the trustee had withdrawn the motion

to dismiss. On June 8, 2010, Attorney Mross filed what he

labeled an "Amended" attorney fee disclosure, although no prior

attorney fee disclosure had been filed.

¶24 The bankruptcy court granted a discharge to L.B. and

P.B. on July 8, 2010. Based on L.B. and P.B.'s statements at

the June 1, 2010 continued meeting of creditors and the attorney

fee disclosure Attorney Mross filed on June 8, 2010, the trustee

moved the court for an order to examine Attorney Mross's fees

and require him to turn over any excess fees to L.B. and P.B.

In the motion the trustee noted that Attorney Mross failed to
No. 2012AP406-D

10

file required documentation and twice put his clients in

jeopardy of dismissal and forced the trustee to continue the

meeting of creditors twice. The motion also noted Attorney

Mross failed to appear at the second continued meeting of

creditors.

¶25 In a July 28, 2010 conference call with L.B. and P.B.,

Attorney Mross, and the trustee, Attorney Mross agreed to refund

L.B. and P.B. the entire $1,200 they had paid him. L.B. and

P.B. received the refund on July 29, 2010. On August 2, 2010,

Attorney Mross filed a motion with the bankruptcy court to

withdraw as counsel for L.B. and P.B. The trustee withdrew the

motion for fee examination on August 11, 2010.

¶26 The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Mross's representation of

L.B. and P.B.:

[COUNT III:] By failing to timely file the

necessary documentation required for his clients'

bankruptcy and by failing to appear for the final

creditors' meeting, Mross violated SCR 20:1.3.

[COUNT IV:] By failing to consult with his

clients about the objectives of the representation,

Mross violated SCR 20:1.4(a)(2).

[COUNT V:] By failing to communicate with his

clients and inform them about the status of their

bankruptcy, Mross violated SCR 20:1.4(a)(3).

[COUNT VI:] By failing to provide his clients a

written fee agreement setting forth the scope of the

representation and the basis or rate of the $1.200 fee

they paid to him, Mross violated SCR 20:1.5(b)(1).

5

5 SCR 20:1.5(b)(1) provides:
No. 2012AP406-D

11

¶27 A hearing was held before the referee on November 6,

2012. On November 28, 2012, the referee filed his report and

recommendation. The referee filed a supplemental report and

recommendation on February 21, 2013. The referee found in favor

of the OLR on Counts I, III, and VI. He found in favor of

Attorney Mross on Count II, IV, and V.

¶28 As to Count II, the referee said the practice in the

bankruptcy court is that notices are sent to both the attorney

and the debtors. The referee reasoned D.Y. and S.Y. were aware

of their obligation to file a financial management course

completion certificate and for that reason Attorney Mross should

not be liable for failing to inform D.Y. and S.Y. of something

they were already aware of.

¶29 As to Count IV, the referee said although the record

was clear that Attorney Mross failed to act with reasonable

diligence and promptness, the record failed to show that he did

not consult with L.B. and P.B. about the objectives of his

representation. The referee said the fact Attorney Mross had

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, except before or within a reasonable time

after commencing the representation 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 the 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.
No. 2012AP406-D

12

little or no contact with L.B. and P.B. during certain time

periods did not equate to a failure to consult with them about

the objectives of the representation. The referee said from the

record it appeared L.B. and P.B. and Attorney Mross were always

aware of the objectives sought but that Attorney Mross failed to

act with reasonable diligence in accomplishing those objectives.

With respect to Count V, the referee found Attorney Mross did

communicate with and inform L.B. and P.B. about their case but

that he failed to carry out the planned objectives.

¶30 With respect to the appropriate level of discipline,

the referee recommended a 60-day suspension of Attorney Mross's

license to practice law. The referee noted that the OLR

requested a 90-day suspension. In concluding that a 60-day

suspension is more appropriate, the referee pointed out that

Attorney Mross refunded to L.B. and P.B. the $1,200 they had

paid him. The referee also noted Attorney Mross has consented

to no longer taking referral bankruptcies from Arney. The

referee also noted that he found in favor of Attorney Mross on

three out of the original six counts alleged in the OLR's

complaint. The referee also noted that Attorney Mross's

behavior at the evidentiary hearing was not combative or

antagonistic toward his former clients, counsel for the OLR, or

the referee. The referee also recommended that Attorney Mross

pay the full costs of the proceeding.

¶31 When reviewing a referee's report and recommendation,

we will affirm the referee's findings of fact unless they are

clearly erroneous. See In re Disciplinary Proceedings Against
No. 2012AP406-D

13

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

referee's conclusions of law are subject to de novo review. Id.

We determine the appropriate level of discipline given the

particular facts of each case, independent of the referee's

recommendation, but benefitting from it. See In re Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660

N.W.2d 686. After independently reviewing the matter, we

conclude that the findings of fact contained in the referee's

supplemental report are not clearly erroneous, and we adopt

them. We also agree that the referee's supplemental conclusions

of law regarding Attorney Mross's misconduct are correct, and we

concur with the referee that a 60-day suspension of Attorney

Mross's license to practice law is appropriate. We also agree

that Attorney Mross should be required to pay the full costs of

this disciplinary proceeding.

¶32 IT IS ORDERED that the license of William F. Mross to

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

effective June 14, 2013.

¶33 IT IS FURTHER ORDERED that William F. Mross 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.

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

of this order, William F. Mross shall pay to the Office of

Lawyer Regulation, the costs of this proceeding, which are

$5,973.98.
No. 2012AP406-D

14

¶35 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.28(2).
2013 WI 44

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2012AP406-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings

Against William F. Mross, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

William F. Mross,

Respondent.

FILED

MAY 17, 2013

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶36 PER CURIAM. We review the supplemental report and

recommendation of the referee, Michael F. Dubis, finding that

William F. Mross violated the Wisconsin Rules of Professional

Conduct for Attorneys and recommending that Attorney Mross's

license to practice law in Wisconsin be suspended for 60 days

and that he be required to pay the costs of this proceeding.
No. 2012AP406-D

2

¶37 Because no appeal has been filed, we review the

referee's report pursuant to SCR 22.17(2).

1 After conducting an

independent review of the matter, we adopt the referee's

findings of fact and supplemental conclusions of law, and we

agree with the referee's supplemental recommendation that

Attorney Mross's license to practice law be suspended for a

period of 60 days. We also agree that Attorney Mross should be

required to pay the full costs of the proceeding, which were

$5,973.98 as of December 17, 2012.

¶38 Attorney Mross was admitted to practice law in

Wisconsin in 1975 and practices in Racine. He has been subject

to professional discipline on four prior occasions. In 2003,

his license was suspended for 90 days for violating SCR

20:8.4(b)

2 by delivering cigarettes to inmates at the Racine

County jail, in violation of Wis. Stat. § 302.095(2). In re

Disciplinary Proceedings Against Mross, 2003 WI 4, 259

Wis. 2d 8, 657 N.W.2d 342. In 2004, he was privately

reprimanded for failing to competently represent, communicate

1 SCR 22.17(2) states:

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.

2 SCR 20:8.4(b) states it is professional misconduct for a

lawyer to "commit a criminal act that reflects adversely on the

lawyer's honesty, trustworthiness or fitness as a lawyer in

other respects; . . . ."
No. 2012AP406-D

3

with, and keep informed clients in the defense of a foreclosure

matter. Private Reprimand, No. 2004-11. In 2006, he was

publicly reprimanded for failing to diligently represent,

communicate with, and keep clients informed in foreclosure

matters; and accepting compensation for representing those

clients from a non-attorney offering debt relief, without the

clients' consent. Public Reprimand of William F. Mross,

No. 2006-10. In 2010, he was publicly reprimanded for

practicing law while administratively suspended for

noncompliance with continuing legal education (CLE) requirements

and failing to disclose to the Board of Bar Examiners (BBE) or

the Office of Lawyer Regulation (OLR) his practice activities

while suspended, and for providing improper financial assistance

to clients when he made a bankruptcy plan payment for them out

of his own funds. Public Reprimand of William F. Mross,

No. 2010-5.

¶39 The instant matter involves Attorney Mross's

representation of two clients in foreclosure and bankruptcy

proceedings. In September 2006 D.Y. and S.Y. retained Attorney

Mross to represent them in a mortgage foreclosure action. D.Y.

and S.Y. had been referred to Attorney Mross by Kent Arney, a

paralegal, who solicits foreclosure defendants and offers them

assistance in handling their foreclosure matters. In October of

2006, the Racine County circuit court granted a default judgment

of foreclosure against D.Y. and S.Y.

¶40 In April of 2007, D.Y. and S.Y., represented by

Attorney Mross, filed a Chapter 13 bankruptcy action in the
No. 2012AP406-D

4

Eastern District of Wisconsin. On December 20, 2007, the

bankruptcy court notified D.Y. and S.Y. and Attorney Mross of

financial management course requirements that were a condition

precedent to obtaining a discharge. On January 28, 2008, the

bankruptcy trustee moved to convert the bankruptcy to a Chapter

7 proceeding. The bankruptcy court granted the trustee's motion

to convert the matter to a Chapter 7 proceeding on February 5,

2008.

¶41 The meeting of creditors occurred on March 31, 2008.

Since D.Y. and S.Y. were then in a Chapter 7 proceeding, they

had approximately 60 days thereafter to file a certification

with the bankruptcy court confirming that they successfully

completed an approved financial management course.

¶42 Attorney Mross's license to practice law was suspended

from May 27, 2008 until July 15, 2008, due to his failure to

meet his CLE obligations.

¶43 As of May 31, 2008, D.Y. and S.Y. had met all

requirements for bankruptcy discharge, except for filing the

financial management course completion certification. D.Y. and

S.Y. did not complete the course requirement, nor did Attorney

Mross remind them to do so at any time before the May 30, 2008

course completion certification filing deadline.

¶44 On July 22, 2008, the bankruptcy court closed D.Y. and

S.Y.'s case without discharge because the required certification

of financial management course completion had not been filed.

The closing notice was sent to both D.Y. and S.Y. and Attorney

Mross. Upon receiving the case closing notice, D.Y. and S.Y.
No. 2012AP406-D

5

enrolled in a financial management course, which they completed

on August 17, 2008. D.Y. and S.Y. also contacted Attorney Mross

and asked him to reopen their bankruptcy proceeding.

¶45 On October 1, 2008, Attorney Mross filed a motion in

the Racine County foreclosure action seeking to cancel the

sheriff's sale which had been scheduled after the non-discharge

closure of the bankruptcy matter. On October 3, 2008, Attorney

Mross sent D.Y. and S.Y. a bill for $500 for this work. On

November 18, 2008, the circuit court vacated the foreclosure

judgment and dismissed the action without prejudice.

¶46 Over the course of the next year, D.Y. and S.Y.

contacted Attorney Mross periodically by e-mail to ask about

reopening their bankruptcy. Each time, Attorney Mross gave a

different excuse for why he had not filed a motion to reopen the

case, and eventually told them not to communicate with him by email because his computer was not working.

¶47 On November 20, 2009, S.Y. filed a grievance against

Attorney Mross with the OLR.

¶48 On January 4, 2010, Attorney Mross moved to reopen

D.Y. and S.Y.'s bankruptcy and filed documents, including D.Y.

and S.Y.'s financial management course completion certificates.

On February 17, 2010, the bankruptcy court reopened the case and

accepted the course completion certifications. In granting the

motion to reopen, the bankruptcy court commented that while D.Y.

and S.Y. had acted promptly to take the course and obtain the

completion certificate, it was only due to Attorney Mross's

suspended license and his subsequent failure to act promptly
No. 2012AP406-D

6

that 18 months had elapsed before the motion to reopen the

bankruptcy case was filed. On February 18, 2010, the bankruptcy

court entered an order granting D.Y. and S.Y. a discharge.

¶49 On February 27, 2012, the OLR filed a complaint

alleging the following counts of misconduct with respect to

Attorney Mross's handling of D.Y. and S.Y.'s bankruptcy case:

[COUNT I:] By failing to ensure that his clients

met all the requirements for discharge in their

bankruptcy, and by failing for eighteen (18) months to

seek the reopening of his clients' bankruptcy, Mross

violated SCR 20:1.3.

3

[COUNT II:] By failing to keep his clients

informed about the status of their bankruptcy and

their requirements for discharge, Mross violated SCR

20:1.4(a)(3).

4

¶50 The OLR's complaint also alleged that Attorney Mross

engaged in professional misconduct with respect to his

representation of L.B. and P.B. In 2008, L.B. and P.B. were

experiencing debt management problems and in November 2008 their

mortgage lender filed a foreclosure action against them in Rock

County circuit court. Shortly after the foreclosure action was

filed, L.B. and P.B. received a solicitation letter from

paralegal Kent Arney offering "to discuss alternatives for a

quick resolution." L.B. and P.B. called Arney and hired him

over the phone and agreed to pay him $1,800. L.B. and P.B. paid

$600 to Arney and they also paid a total of $1,200 to Attorney

3 SCR 20:1.3 states "[a] lawyer shall act with reasonable

diligence and promptness in representing a client."

4 SCR 20:1.4(a)(3) states a lawyer shall "keep the client

reasonably informed about the status of a matter; . . . ."
No. 2012AP406-D

7

Mross. L.B. and P.B. gave Arney the information and

documentation needed to file a Chapter 13 bankruptcy petition.

They never directly hired Attorney Mross. Instead, Arney told

L.B. and P.B. that Attorney Mross would be helping him with the

case. There was no written fee agreement between Attorney Mross

and L.B. and P.B.

¶51 Attorney Mross filed an answer in the foreclosure case

on L.B. and P.B.'s behalf on March 9, 2009. L.B. and P.B. had

not met with Attorney Mross prior to this time. On June 16,

2009, the lender moved for judgment in the foreclosure action,

which the circuit court granted on July 17, 2009. The judgment

provided for a six-month redemption period. During the

redemption period the debtor is entitled to pay off the amount

due and keep the home. Once the redemption period is over, a

sheriff's sale of the property occurs.

¶52 Attorney Mross had little, if any, contact with L.B.

and P.B. during the redemption period. A sheriff's sale of L.B.

and P.B.'s residence occurred, and the report of the sheriff's

sale was filed on January 21, 2010.

¶53 On January 19, 2010, Attorney Mross filed a Chapter 13

bankruptcy action on behalf of L.B. and P.B. Later that day the

clerk of the bankruptcy court notified Attorney Mross that he

had failed to file numerous required documents with L.B. and

P.B.'s bankruptcy petition. The notice indicated the deadline

to submit the missing documents was February 2, 2010. Attorney

Mross failed to file the missing documents by that date. On

February 3, 2010, the bankruptcy trustee moved to dismiss L.B.
No. 2012AP406-D

8

and P.B.'s bankruptcy petition for failure to file the missing

documents. On February 24, 2010, Attorney Mross moved to

convert L.B. and P.B.'s bankruptcy to a Chapter 7 proceeding.

The bankruptcy court granted the conversion on February 25,

2010.

¶54 The conversion to a Chapter 7 proceeding moved the

deadline for filing the required documentation to April 10,

2010, and moved the meeting of creditors to April 20, 2010.

Attorney Mross filed some but not all of the required documents,

which were received by the bankruptcy court on April 19, 2010.

The creditors' meeting was rescheduled to May 17, 2010.

Attorney Mross had no contact with L.B. and P.B. between

January 29, 2010 and his filing of the incomplete information on

April 19, 2010.

¶55 On May 14, 2010, the bankruptcy trustee moved to

dismiss L.B. and P.B.'s bankruptcy for failure to file certain

documents. On May 17, 2010, Attorney Mross and L.B. and P.B.

appeared for the meeting of creditors. At the meeting, L.B. and

P.B. testified that Attorney Mross had not requested the

relevant documents from L.B. and P.B. The meeting of creditors

was therefore continued to June 1, 2010.

¶56 Immediately after the May 17, 2010 meeting of

creditors, Attorney Mross requested that L.B. and P.B. pay him

the second and final $600 installment payment toward his $1,200

fee, and L.B. and P.B. did so. On May 25, 2010, Attorney Mross

sent L.B. and P.B. documents from the foreclosure action

indicating that the creditor had moved the bankruptcy court for
No. 2012AP406-D

9

relief from the automatic stay. The bankruptcy trustee

initially objected to the creditor's request but later withdrew

the objection. On May 4, 2010, the bankruptcy court relieved

the creditor from the stay. Attorney Mross did not file any

documents with the bankruptcy court between the May 17, 2010

meeting of creditors and the June 1, 2010 continued meeting.

¶57 At the continued meeting of creditors on June 1, 2010,

L.B. and P.B. appeared and filed the missing documents.

Attorney Mross did not appear at the continued meeting and

advised the trustee's office by telephone that he had not

appeared due to a scheduling conflict.

¶58 On June 4, 2010, the bankruptcy trustee withdrew the

motion to dismiss, noting that L.B. and P.B. had filed the

required documentation with the bankruptcy court. On June 7,

2010, Attorney Mross filed an objection to the motion to

dismiss. By this time L.B. and P.B. had already submitted the

requested documentation and the trustee had withdrawn the motion

to dismiss. On June 8, 2010, Attorney Mross filed what he

labeled an "Amended" attorney fee disclosure, although no prior

attorney fee disclosure had been filed.

¶59 The bankruptcy court granted a discharge to L.B. and

P.B. on July 8, 2010. Based on L.B. and P.B.'s statements at

the June 1, 2010 continued meeting of creditors and the attorney

fee disclosure Attorney Mross filed on June 8, 2010, the trustee

moved the court for an order to examine Attorney Mross's fees

and require him to turn over any excess fees to L.B. and P.B.

In the motion the trustee noted that Attorney Mross failed to
No. 2012AP406-D

10

file required documentation and twice put his clients in

jeopardy of dismissal and forced the trustee to continue the

meeting of creditors twice. The motion also noted Attorney

Mross failed to appear at the second continued meeting of

creditors.

¶60 In a July 28, 2010 conference call with L.B. and P.B.,

Attorney Mross, and the trustee, Attorney Mross agreed to refund

L.B. and P.B. the entire $1,200 they had paid him. L.B. and

P.B. received the refund on July 29, 2010. On August 2, 2010,

Attorney Mross filed a motion with the bankruptcy court to

withdraw as counsel for L.B. and P.B. The trustee withdrew the

motion for fee examination on August 11, 2010.

¶61 The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Mross's representation of

L.B. and P.B.:

[COUNT III:] By failing to timely file the

necessary documentation required for his clients'

bankruptcy and by failing to appear for the final

creditors' meeting, Mross violated SCR 20:1.3.

[COUNT IV:] By failing to consult with his

clients about the objectives of the representation,

Mross violated SCR 20:1.4(a)(2).

[COUNT V:] By failing to communicate with his

clients and inform them about the status of their

bankruptcy, Mross violated SCR 20:1.4(a)(3).

[COUNT VI:] By failing to provide his clients a

written fee agreement setting forth the scope of the

representation and the basis or rate of the $1.200 fee

they paid to him, Mross violated SCR 20:1.5(b)(1).

5

5 SCR 20:1.5(b)(1) provides:
No. 2012AP406-D

11

¶62 A hearing was held before the referee on November 6,

2012. On November 28, 2012, the referee filed his report and

recommendation. The referee filed a supplemental report and

recommendation on February 21, 2013. The referee found in favor

of the OLR on Counts I, III, and VI. He found in favor of

Attorney Mross on Count II, IV, and V.

¶63 As to Count II, the referee said the practice in the

bankruptcy court is that notices are sent to both the attorney

and the debtors. The referee reasoned D.Y. and S.Y. were aware

of their obligation to file a financial management course

completion certificate and for that reason Attorney Mross should

not be liable for failing to inform D.Y. and S.Y. of something

they were already aware of.

¶64 As to Count IV, the referee said although the record

was clear that Attorney Mross failed to act with reasonable

diligence and promptness, the record failed to show that he did

not consult with L.B. and P.B. about the objectives of his

representation. The referee said the fact Attorney Mross had

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, except before or within a reasonable time

after commencing the representation 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 the 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.
No. 2012AP406-D

12

little or no contact with L.B. and P.B. during certain time

periods did not equate to a failure to consult with them about

the objectives of the representation. The referee said from the

record it appeared L.B. and P.B. and Attorney Mross were always

aware of the objectives sought but that Attorney Mross failed to

act with reasonable diligence in accomplishing those objectives.

With respect to Count V, the referee found Attorney Mross did

communicate with and inform L.B. and P.B. about their case but

that he failed to carry out the planned objectives.

¶65 With respect to the appropriate level of discipline,

the referee recommended a 60-day suspension of Attorney Mross's

license to practice law. The referee noted that the OLR

requested a 90-day suspension. In concluding that a 60-day

suspension is more appropriate, the referee pointed out that

Attorney Mross refunded to L.B. and P.B. the $1,200 they had

paid him. The referee also noted Attorney Mross has consented

to no longer taking referral bankruptcies from Arney. The

referee also noted that he found in favor of Attorney Mross on

three out of the original six counts alleged in the OLR's

complaint. The referee also noted that Attorney Mross's

behavior at the evidentiary hearing was not combative or

antagonistic toward his former clients, counsel for the OLR, or

the referee. The referee also recommended that Attorney Mross

pay the full costs of the proceeding.

¶66 When reviewing a referee's report and recommendation,

we will affirm the referee's findings of fact unless they are

clearly erroneous. See In re Disciplinary Proceedings Against
No. 2012AP406-D

13

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

referee's conclusions of law are subject to de novo review. Id.

We determine the appropriate level of discipline given the

particular facts of each case, independent of the referee's

recommendation, but benefitting from it. See In re Disciplinary

Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660

N.W.2d 686. After independently reviewing the matter, we

conclude that the findings of fact contained in the referee's

supplemental report are not clearly erroneous, and we adopt

them. We also agree that the referee's supplemental conclusions

of law regarding Attorney Mross's misconduct are correct, and we

concur with the referee that a 60-day suspension of Attorney

Mross's license to practice law is appropriate. We also agree

that Attorney Mross should be required to pay the full costs of

this disciplinary proceeding.

¶67 IT IS ORDERED that the license of William F. Mross to

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

effective June 14, 2013.

¶68 IT IS FURTHER ORDERED that William F. Mross 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.

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

of this order, William F. Mross shall pay to the Office of

Lawyer Regulation, the costs of this proceeding, which are

$5,973.98.
No. 2012AP406-D

14

¶70 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.28(2).