2013 WI 55

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2334-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings

Against Patrick M. Cooper, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

Patrick M. Cooper,

Respondent.

DISCIPLINARY PROCEEDINGS AGAINST COOPER

OPINION FILED: June 26, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:
2013 WI 55

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2012AP2334-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings

Against Patrick M. Cooper, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

Patrick M. Cooper,

Respondent.

FILED

JUN 26, 2013

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. We review the report of the referee,

Attorney Christine Harris Taylor, recommending that Attorney

Patrick M. Cooper's license to practice law in Wisconsin be

suspended for a period of two years, retroactive to the

expiration of his prior disciplinary suspension. The referee's

recommendation was based on the stipulation and no contest plea

entered by Attorney Cooper. The referee has further recommended
No. 2012AP2334-D

2

that Attorney Cooper be required to pay the costs of this

disciplinary proceeding, which were $913.94 as of April 9, 2013.

No appeal has been filed in this matter. Accordingly, our

review proceeds pursuant to SCR 22.17(2).

1

¶2 The Office of Lawyer Regulation (OLR) filed the

present complaint against Attorney Cooper in October 2012. The

complaint set forth 42 counts of misconduct arising out of nine

separate client representations.

2 The complaint asked for an

additional two-year suspension of Attorney Cooper's license.

Attorney Cooper filed an answer in which he denied all of the

material factual allegations against him and asserted that the

delay in bringing the current charges of misconduct violated his

due process rights.

¶3 After the appointment of a referee, Attorney Cooper

entered into a stipulation with the OLR. Pursuant to the

stipulation, Attorney Cooper withdrew his answer, agreed that

the referee could use the allegations of the complaint as a

factual basis for a determination of misconduct, and pled no

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 The OLR and the referee refer to the complaint as

containing 41 counts. Because of a numbering error, it actually

contains 42 counts, which is the number that we will use in this

decision.
No. 2012AP2334-D

3

contest to each of the counts set forth in the OLR's complaint.

The stipulation requested the referee to recommend that the

court (1) impose a two-year suspension as sought by the OLR and

(2) make that suspension retroactive to the date on which

Attorney Cooper's prior suspension expired. In the stipulation,

Attorney Cooper represents that he fully understands the

allegations of misconduct against him and his right to contest

those charges of misconduct, that he understands the

ramifications of entering into the stipulation, that he

understands his right to consult with counsel and has decided to

proceed on a pro se basis, and that he is entering into the

stipulation knowingly and voluntarily.

¶4 Pursuant to the stipulation, the referee made findings

of fact based on the allegations of the complaint. Those

findings are summarized in the following paragraphs.

¶5 Attorney Cooper was admitted to the practice of law in

September 1993. As discussed below, Attorney Cooper's license

to practice law is currently suspended. The most recent address

he has provided to the State Bar of Wisconsin is in Mequon,

Wisconsin.

¶6 Attorney Cooper's license to practice law in this

state was administratively suspended on October 31, 2005, for

failure to pay mandatory bar dues and assessments.

3 On

December 14, 2005, this court also temporarily suspended

3 An additional administrative suspension for failure to

comply with mandatory reporting of continuing legal education

credits was imposed in June 2006.
No. 2012AP2334-D

4

Attorney Cooper's license due to his willful failure to

cooperate with OLR investigations into his conduct.

¶7 Those OLR investigations led to the first disciplinary

proceeding against Attorney Cooper. The OLR's amended complaint

in that matter alleged 33 counts of misconduct. In light of

Attorney Cooper's failure to participate in that disciplinary

proceeding, the referee declared him to be in default and found

that Attorney Cooper had committed each of the 33 counts of

misconduct. Attorney Cooper's misconduct included conversion of

client funds, multiple misrepresentations to clients, depositing

client trust funds into his personal account, failing to notify

others of his receipt of funds belonging to them, failing to

deliver a client file to successor counsel, failing to act with

diligence, failing to communicate with clients, and failing to

cooperate with the OLR's grievance investigations. Ultimately,

this court imposed a three-year suspension of Attorney Cooper's

license to practice law in this state. In re Disciplinary

Proceedings Against Cooper, 2007 WI 37, 300 Wis. 2d 61, 729

N.W.2d 206 (Cooper I) (suspension effective March 23, 2007).

¶8 At the time of the Cooper I disciplinary proceeding,

the OLR was investigating each of the nine

representations/grievances that form the basis for the current

complaint. Within a few days after the Cooper I decision was

released, the OLR sent a letter to Attorney Cooper advising him

that it was placing its nine pending investigations on hold

until such time as Attorney Cooper petitioned for the

reinstatement of his license and informing him that he should
No. 2012AP2334-D

5

contact the OLR at any time if he wished to resolve any of the

investigated matters.

¶9 In December 2010 Attorney Cooper filed a petition for

the reinstatement of his license. Ultimately, Attorney Cooper

entered a stipulation with the OLR for the dismissal of his

reinstatement petition. Based on the stipulation, this court

dismissed the reinstatement petition in September 2011.

¶10 As noted above, the OLR's current complaint addresses

nine client representations and alleges 42 separate counts of

professional misconduct. Describing each of those client

representations and the accompanying charges of misconduct is

unnecessary to demonstrate the nature and scope of Attorney

Cooper's misconduct. Each of those nine representations

followed a similar, but not identical pattern.

¶11 An illustrative example is sufficient to show the

types of misconduct committed by Attorney Cooper. In the summer

of 2004, Attorney Cooper was retained by K.W. to represent him

regarding a work-related injury. Over the next year, the

attorney representing the worker's compensation insurer, or his

paralegal, asked Attorney Cooper to provide authorizations

signed by K.W. that would allow them to obtain K.W.'s medical

records. Attorney Cooper failed to obtain K.W.'s signature or

to provide the authorizations to opposing counsel.

¶12 In April 2005 opposing counsel wrote a letter to the

Department of Workforce Development (DWD) explaining the actions

that still needed to be completed before K.W.'s worker's

compensation case would be ready for a hearing. Opposing
No. 2012AP2334-D

6

counsel stated that the case had not moved forward because of

Attorney Cooper's failure to respond to his repeated requests

for the medical records release authorizations. On June 17,

2005, the administrative law judge (ALJ) ordered Attorney Cooper

to provide the authorizations within 45 days or K.W.'s claim

would be dismissed. On July 27, 2005, just four days prior to

the 45-day deadline, Attorney Cooper sent the authorization

forms to K.W. He did not, however, advise K.W. of the deadline

that needed to be met in just a few days in order to avoid

dismissal of K.W.'s worker's compensation claim. When the

authorization forms were not provided, opposing counsel sought

dismissal of K.W.'s claim for failure to prosecute, which the

ALJ granted on August 15, 2005.

¶13 During the representation, K.W. had approximately five

or six discussions with Attorney Cooper regarding his case. On

the few occasions when K.W. was able to reach Attorney Cooper by

telephone, Attorney Cooper would cut off the conversation,

stating that he needed to get off the telephone but would call

K.W. back. Attorney Cooper, however, never made the promised

return calls. In addition, at one point during the

representation, Attorney Cooper told K.W. that he had received a

settlement offer from opposing counsel and would forward it to

K.W. This was a false statement, however, as there was no

evidence of any such settlement offer.

¶14 After K.W. learned that his case had been dismissed,

he called Attorney Cooper's office numerous times, but Attorney

Cooper failed to return any of K.W.'s calls. K.W. then
No. 2012AP2334-D

7

terminated Attorney Cooper's representation and requested in

writing that Attorney Cooper send his file to him. Attorney

Cooper failed to respond.

¶15 K.W. subsequently filed a grievance with the OLR

against Attorney Cooper. In February and April 2006, the OLR

sent letters to Attorney Cooper advising him of K.W.'s grievance

and asking him to submit a written response to the grievance.

See SCR 22.03(2). Attorney Cooper did not respond to the OLR's

requests. Indeed, he did not provide a response to K.W.'s

grievance until after he filed his December 2010 petition for

reinstatement. At that time Attorney Cooper informed the OLR

that he no longer had K.W.'s file and that a different law firm

might have the file. The OLR discovered no evidence, however,

that this other law firm had ever represented K.W. in his

worker's compensation case or that K.W. had consented for

Attorney Cooper to transfer his file to any other attorney or

law firm.

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

concluded that Attorney Cooper had committed six counts of

professional misconduct related to his representation of K.W.

First, Attorney Cooper violated SCR 20:1.3 due to his lack of

diligence in obtaining the medical records release

authorizations from K.W., providing those authorizations to

opposing counsel, or otherwise preparing K.W.'s case to be ready

for a hearing before the ALJ. Attorney Cooper's failure to

communicate adequately with K.W. or to respond to K.W.'s

reasonable requests for information violated former
No. 2012AP2334-D

8

SCR 20:1.4(a). Attorney Cooper also violated former

SCR 20:1.16(d) by failing to provide K.W. with a copy of his

file when requested. The referee further concluded that

Attorney Cooper had made a misrepresentation to K.W., in

violation of SCR 20:8.4(c), when he had falsely stated that he

had received a settlement offer from opposing counsel. In

addition, by failing to notify K.W. of the October and December

2005 suspensions of his license to practice law, Attorney Cooper

violated SCRs 22.26(1)(a) and (b), which are enforced via

SCR 20:8.4(f). Finally, the referee found that Attorney Cooper

had failed to provide a timely response to K.W.'s grievance, as

requested in two letters from the OLR, in violation of

SCRs 22.03(2) and (6), which are also enforced via

SCR 20:8.4(f).

¶17 In total, based on the stipulation and the allegations

of the OLR's complaint, the referee concluded that Attorney

Cooper had committed the following violations:

• Four counts of violating SCR 20:1.3

4 (lack of

diligence);

• Seven counts of violating former SCR 20:1.4(a)

5 (lack

of communication with client);

4 SCR 20:1.3 states, "A lawyer shall act with reasonable

diligence and promptness in representing a client."

5 Former SCR 20:1.4(a) (effective through June 30, 2007)

provided that "[a] lawyer shall keep a client reasonably

informed about the status of a matter and promptly comply with

reasonable requests for information."
No. 2012AP2334-D

9

• One count of violating former SCR 20:1.2(a)

6 and

SCR 20:1.4(b)

7 (failing to explain matters to client

and to consult with client regarding means of pursuing

objectives of representation);

• Four counts of violating SCR 20:8.4(c)

8 (engaging in

conduct involving dishonesty, fraud, deceit or

misrepresentation);

• Nine counts of violating former SCR 20:1.16(d)

9

(failing to deliver files to clients or successor

counsel);

6 Former SCR 20:1.2(a) (effective through June 30, 2007)

provided, in relevant part, as follows:

A lawyer shall abide by a client's decisions

concerning the objectives of representation, . . . and

shall consult with the client as to the means by which

they are to be pursued. A lawyer shall inform a

client of all offers of settlement and abide by a

client's decision whether to accept an offer of

settlement of a matter . . . .

7 SCR 20:1.4(b) states, "A lawyer shall explain a matter to

the extent reasonably necessary to permit the client to make

informed decisions regarding the representation."

8 SCR 20:8.4(c) provides that it is professional misconduct

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

deceit or misrepresentation; . . . ."

9 Former SCR 20:1.16(d) (effective through June 30, 2007)

stated as follows:

Upon termination of representation, a lawyer

shall take steps to the extent reasonably practicable

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 that has not been earned.
No. 2012AP2334-D

10

• Six counts of violating SCRs 22.26(1)(a) and (b)

10

(failing to notify clients, tribunals, or opposing

counsel of suspension of law license);

• One count of violating SCRs 22.26(2)

11 and 10.03(6)12

(practicing law while license suspended);

The lawyer may retain papers relating to the client to

the extent permitted by other law.

10 SCRs 22.26(1)(a) and (b) state:

On or before the effective date of license

suspension or revocation, an attorney whose license is

suspended or revoked shall do all of the following:

(a) Notify by certified mail all clients being

represented in pending matters of the suspension or

revocation and of the attorney's consequent inability

to act as an attorney following the effective date of

the suspension or revocation.

(b) Advise the clients to seek legal advice of

their choice elsewhere.

11 SCR 22.26(2) provides as follows:

An attorney whose license to practice law is

suspended or revoked or who is suspended from the

practice of law may not engage in this state in the

practice of law or in any law work activity

customarily done by law students, law clerks, or other

paralegal personnel, except that the attorney may

engage in law related work in this state for a

commercial employer itself not engaged in the practice

of law.

12 SCR 10.03(6) states: Penalty for nonpayment of dues.

If the annual dues or assessments of any member

remain unpaid 120 days after the payment is due, the

membership of the member may be suspended in the

manner provided in the bylaws; and no person whose

membership is so suspended for nonpayment of dues or
No. 2012AP2334-D

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• One count of violating SCR 20:3.4(c)

13 (failing to

comply with order of ALJ); and

• Nine counts of violating SCRs 22.03(2) and (6)

14

(failing to submit written response to grievance).

¶18 In its memorandum in support of the stipulation, the

OLR argued that a two-year suspension, retroactive to the end of

the prior, three-year suspension, would be an appropriate level

assessments may practice law during the period of the

suspension.

13 SCR 20:3.4(c) states 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; . . . ."

14 SCRs 22.03(2) and (6) provide as follows:

(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.
No. 2012AP2334-D

12

of discipline. The OLR indicated that a two-year suspension was

supported by this court's decision in the case of In re

Disciplinary Proceedings Against Haberman, 126 Wis. 2d 411, 376

N.W.2d 852 (1985), where we suspended Attorney Haberman's

license for two years for misconduct that included neglect of

his duties in seven estates, engaging in a prohibited conflict

of interest, and failing to cooperate with the investigations of

his conduct with respect to two estates. It also concluded that

a two-year suspension was supported by the fact that Attorney

Cooper's misconduct was more extensive and/or serious than the

misconduct in two cases where we imposed one-year suspensions.

See In re Disciplinary Proceedings Against Woodard, 190 Wis. 2d

487, 526 N.W.2d 510 (1995) (one-year suspension imposed for

misconduct including failing to communicate with clients,

failing to return file to client, and failing to cooperate with

two grievance investigations); In re Disciplinary Proceedings

Against Kennedy, 119 Wis. 2d 261, 349 N.W.2d 483 (1984) (oneyear suspension imposed for misconduct consisting of neglecting

two client matters and failing to cooperate in the ensuing

investigations).

¶19 The OLR further noted that there were a number of

aggravating factors in the present case, including Attorney

Cooper's prior discipline, the presence of a pattern of

misconduct, the presence of multiple violations, the fact that a

number of violations involved intentional failure to comply with

his obligations to the disciplinary agency and to tribunals, his

substantial experience at the time of the violations, and his
No. 2012AP2334-D

13

refusal to acknowledge the wrongful nature of his conduct. On

the mitigating side, the OLR noted that the misconduct had

occurred during substantially the same time period as the

misconduct that formed the basis for the three-year suspension

imposed in 2007, and that Attorney Cooper had alleged that

stress and emotional problems had essentially caused him to

"check out" of his law practice during the relevant time period.

¶20 The OLR's memorandum also provided its rationale for

requesting that any suspension be imposed retroactively.

Because the misconduct here occurred during the same time as the

misconduct that resulted in the prior three-year suspension, the

OLR contended that it would be unfair to make a new suspension

prospective.

¶21 The referee considered the parties' joint request for

a two-year, retroactive suspension, as well as the purposes of

discipline in attorney disciplinary proceedings, the court's

general preference for progressive discipline, and the

aggravating and mitigating factors present in this case. The

referee agreed with the parties that a two-year suspension,

retroactive to the expiration of the prior suspension, would be

an appropriate level of discipline for Attorney Cooper's

misconduct. The referee further recommended that the court

impose the full costs of the disciplinary proceeding on Attorney

Cooper.

¶22 When reviewing a referee's report and recommendation

in an attorney disciplinary proceeding, we affirm a referee's

findings of fact unless they are found to be clearly erroneous,
No. 2012AP2334-D

14

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 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.

¶23 In light of Attorney Cooper's stipulation and no

contest plea, we adopt the referee's findings of fact, which are

based on the OLR's complaint. We also agree with the referee

that those findings of fact support a legal conclusion that

Attorney Cooper committed each of the 42 counts of professional

misconduct alleged in the OLR's complaint.

¶24 We now turn to the appropriate level of discipline.

The facts alleged in the complaint with respect to the nine

client representations demonstrate a clear pattern by Attorney

Cooper of neglect and of failure to pursue the objectives of his

clients. In addition, while he failed to move their claims

forward, Attorney Cooper also essentially shut down

communications with his clients, leaving them in the dark, even

when some of their claims were dismissed. Moreover, by failing

to provide the clients with their case files, Attorney Cooper

impaired their ability to correct or mitigate his misconduct by

retaining new counsel. This is a disturbing pattern of serious

misconduct that goes to the core of an attorney's obligations.

¶25 We recognize, however, that the misconduct alleged in

this case occurred nearly a decade ago, during the same period
No. 2012AP2334-D

15

as the misconduct that was at issue in the previous disciplinary

proceeding. If all of Attorney Cooper's misconduct from that

time period had been addressed in a single proceeding, the most

severe discipline that could have been imposed would have been a

revocation of Attorney Cooper's license to practice law in this

state, which would have allowed him to petition for the

reinstatement of his license after a period of five years.

Imposing an additional suspension of two years in this

proceeding, retroactive to the end of the prior three-year

suspension, would similarly result in a five-year period of

ineligibility to seek reinstatement. A retroactive suspension

would also comport with our prior cases, where we have said that

retroactive suspensions may be appropriate in situations, like

the one here, where the "misconduct occurred prior to the

[earlier] disciplinary proceeding and [the attorney's] license

has remained suspended well beyond the period of suspension

previously imposed." In re Disciplinary Proceedings Against and

Reinstatement of Mandelman, 182 Wis. 2d 583, 592, 514 N.W.2d 11

(1994). Moreover, there is support in our prior decisions for a

two-year suspension given the nature and scope of Attorney

Cooper's misconduct, regardless of the fact that the misconduct

at issue here occurred at the same time as the misconduct

charged in the prior disciplinary proceeding. Accordingly, we

conclude that Attorney Cooper's license to practice law in

Wisconsin should be suspended for a period of two years,
No. 2012AP2334-D

16

retroactive to March 23, 2010, the date on which the prior

three-year suspension expired.

15

¶26 Finally, we turn to the issue of costs. Our general

policy is to impose the full costs of a disciplinary proceeding

on the respondent attorney who is found to have committed

professional misconduct. See SCR 22.24(1m). We see no reason

to depart from that policy in this matter. Although Attorney

Cooper did ultimately enter into a stipulation and no contest

plea, he initially filed an answer that denied each of the

material allegations of misconduct in the OLR's complaint, which

required the appointment of a referee and the accompanying costs

of litigating this matter. It is therefore appropriate that he

pay those costs.

¶27 IT IS ORDERED that the license of Patrick M. Cooper to

practice law in Wisconsin is suspended for a period of two

years, effective March 23, 2010.

15 The referee's report recommends that the suspension be

made retroactive to March 25, 2010, as the date on which

Attorney Cooper was eligible to petition for reinstatement. The

three-year suspension, however, was effective on the date of the

court's order, March 23, 2007, which meant that it expired on

March 23, 2010. Cooper I, 300 Wis. 2d 61, ¶21. We make the new

suspension retroactive to that date. We do not make the new

suspension retroactive to the date on which Attorney Cooper

would have been eligible to file a petition for reinstatement.

Under SCR 22.29(1), an attorney whose license has been suspended

for a definite period of time of six months or more is eligible

to file a reinstatement petition three months prior to the

expiration of the period of suspension.
No. 2012AP2334-D

17

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

of this order, Patrick M. Cooper shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

¶29 IT IS FURTHER ORDERED that Patrick M. Cooper shall

continue compliance with the provisions of SCR 22.26 concerning

the duties of a person whose license to practice law in

Wisconsin has been suspended.

¶30 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.29(4)(c).