2013 WI 90 

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2338-D 

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against 

Robert Paul D'Arruda, Attorney at Law: 

Office of Lawyer Regulation, 

 Complainant, 

 v. 

Robert Paul D'Arruda, 

 Respondent. 

DISCIPLINARY PROCEEDINGS AGAINST D’ARRUDA 

OPINION FILED: November 20, 2013 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: 

SOURCE OF APPEAL: 

 COURT: 

 COUNTY: 

 JUDGE: 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: 

 NOT PARTICIPATING: 

 

ATTORNEYS: 
2013 WI 90

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2338-D 

 

STATE OF WISCONSIN : IN SUPREME COURT 

In the Matter of Disciplinary Proceedings 

Against Robert Paul D'Arruda, Attorney at Law: 

Office of Lawyer Regulation, 

 Complainant, 

 v. 

Robert Paul D'Arruda, 

 Respondent. 

FILED 

NOV 20, 2013 

Diane M. Fremgen 

Clerk of Supreme Court 

ATTORNEY disciplinary proceeding. Attorney publicly 

reprimanded. 

¶1 PER CURIAM. We review, pursuant to SCR 22.17(2),1 the 

report of the referee, Richard C. Ninneman, recommending the 

 

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. 
No. 2012AP2338-D 

2 

court publicly reprimand Attorney Robert Paul D'Arruda for 

professional misconduct. No appeal has been filed. 

¶2 We approve and adopt the referee's findings of fact 

and conclusions of law. We agree that Attorney D'Arruda's 

misconduct warrants a public reprimand, and we direct Attorney 

D'Arruda to reimburse one former client, as provided herein. We 

impose the full costs of this proceeding, which total $6,014.07 

as of September 4, 2013. 

¶3 Attorney D'Arruda was licensed to practice law in 

Wisconsin in 1993. He is a criminal defense attorney from 

Milwaukee, Wisconsin. Attorney D'Arruda was privately 

reprimanded in 2011 for misconduct in two client matters 

involving failure to provide clients with a written fee 

agreement, failure to provide clients with an itemized statement 

or accounting for services, and failure to respond in a timely 

manner to clients' grievances and Office of Lawyer Regulation 

(OLR) requests for information. 

¶4 On October 25, 2012, the OLR filed a 14-count 

complaint alleging that Attorney D'Arruda committed misconduct 

in connection with four client matters. Attorney D'Arruda filed 

an answer admitting allegations related to ten of the counts. 

On June 28, 2013, the parties entered into a stipulation 

reflecting these concessions. Prior to the hearing, the OLR 

voluntarily dismissed one of the remaining counts. 

¶5 On July 25, 2013, the referee conducted an evidentiary 

hearing. Attorney D'Arruda testified on his own behalf and 

called character witnesses. On August 15, 2013, the referee 
No. 2012AP2338-D 

3 

filed a report and recommendation accepting the parties' 

stipulation and, with respect to the remaining three counts of 

misconduct, concluding Attorney D'Arruda engaged in misconduct 

on two of the counts and recommending dismissal of the third. 

The referee recommended the court impose a public reprimand and 

order restitution to one client. No appeal was filed. 

¶6 This court will affirm a referee's findings of fact 

unless they are 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. This 

court is free to impose whatever discipline it deems 

appropriate, 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. 

¶7 The referee accepted the parties' stipulation that 

Attorney D'Arruda failed to provide his clients H.A. and A.M. a 

written communication explaining the basis or rate of his fee 

and the purpose and effect of the advanced fee he accepted in 

violation of SCRs 20:1.5(b)(l) and (2)2 (Count 1); failed to 

 

2 SCRs 20:1.5(b)(1) and (2) state as follows: 

 (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, 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. 
No. 2012AP2338-D 

4 

deposit funds in a trust account until earned, and failed to 

refund an unearned $500 fee upon request in violation of 

SCRs 20:1.15(b)(4)3 (Count 2) and 20:1.16(d)4 (Count 3); and 

failed to timely respond to the ensuing grievance in violation 

of SCR 22.03(2),5 enforceable via SCR 20:8.4(h)6 (Count 4). 

 

 (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. 

3 SCR 20:1.15(b)(4) states: Unearned fees and cost 

advances. 

 Except as provided in par. (4m), unearned fees 

and advanced payments of fees shall be held in trust 

until earned by the lawyer, and withdrawn pursuant to 

sub. (g). Funds advanced by a client or 3rd party for 

payment of costs shall be held in trust until the 

costs are incurred. 

4 SCR 20:1.16(d) provides 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 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. 

5 SCR 22.03(2) states: 

 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 
No. 2012AP2338-D 

5 

Record evidence indicates the Wisconsin Lawyers' Fund for Client 

Protection (the Fund) subsequently reimbursed Attorney 

D'Arruda's client $500 for an advanced fee and Attorney D'Arruda 

testified that he, in turn, reimbursed the Fund such that 

restitution in this matter is not warranted. 

¶8 The referee also accepted the parties' stipulation 

relating to the matter of B.F., concluding that Attorney 

D'Arruda failed to turn over B.F.'s file and discovery materials 

to successor appellate counsel after his representation was 

terminated in January 2011, in violation of SCR 20:1.16(d) 

(Count 12); and failed to provide a timely written response to 

the B.F. grievance in violation of SCR 22.03(2), enforceable via 

SCR 20:8.4(h) (Count 13). 

¶9 The referee also accepted the parties' stipulation 

that Attorney D'Arruda failed to respond to multiple requests by 

the OLR regarding a grievance filed by another former client, 

D.L. The referee thus concluded that Attorney D'Arruda violated 

SCR 22.03(2), enforceable via SCR 20:8.4(h), based on his delay 

in responding to the grievance (Count 14). 

 

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 SCR 20:8.4(h) states 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. 2012AP2338-D 

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¶10 Attorney D'Arruda stipulated to some, but not all of 

the allegations pertaining to his representation of L.N. 

¶11 L.N. hired Attorney D'Arruda in July of 2009 to

represent her in connection with a police investigation in 

Racine County. L.N. paid Attorney D'Arruda $750 in 2009 and 

paid him an additional $1,500 in 2010. On May 17, 2010, the 

State charged L.N. with a felony. 

¶12 Between October 26, 2010, and August 30, 2011, L.N.'s 

case was called for trial several times. Each time, the court 

convened a status conference instead. L.N. was unhappy with the 

delay and eventually filed a grievance with the OLR. In August 

2011 L.N. retained new counsel who arranged a plea deal on her 

behalf. 

¶13 The OLR alleged that Attorney D'Arruda failed to 

promptly pursue resolution of L.N.'s case from November 2010 

until his representation was terminated in July or August 2011 

(Count 5), failed to inform L.N. that he would not appear at all 

scheduled court dates (Count 6), failed to respond to L.N.'s 

phone calls between March 2011 and July 2011 (Count 7), failed 

to give L.N. a final accounting and a refund of any unearned 

advanced fees and required notices upon the termination of his 

representation (Count 8), failed to refund unearned fees (Count 

9), and failed to timely respond in writing to L.N.'s grievance 

(Count 10). 

¶14 Attorney D'Arruda stipulated to the misconduct alleged 

in Counts 6, 8, and 10, and the referee accepted that 

stipulation. Attorney D'Arruda contested the OLR's claims that 
No. 2012AP2338-D 

7 

he failed to diligently pursue the case, failed to respond to 

phone calls, and failed to refund unearned fees. 

¶15 Attorney D'Arruda testified that he was prepared to 

try L.N.'s case as early as October 26, 2010. However, when the 

case was called on October 26, 2010, the prosecutor was in 

another trial and the court continued the case. Attorney 

D'Arruda admits that he did not appear at a February 15, 2011 

trial date because he was in another trial in Milwaukee County. 

He explained that he sent a message by facsimile to both the 

Racine County District Attorney's office and the court. The 

message did not reach the court because Attorney D'Arruda used 

an incorrect fax number, but the prosecutor received the message 

and the court adjourned the matter. On May 10, 2011, the trial 

date was changed to a scheduling conference because of a lack of 

communication between Attorney D'Arruda and the district 

attorney. 

¶16 The referee declined to hold Attorney D'Arruda solely 

responsible for these delays in advancing the L.N. matter to 

resolution. The referee thus concluded that the OLR failed to 

prove this claim by clear, satisfactory, and convincing evidence 

and recommended the court dismiss Count 5. 

¶17 The referee found that facts set forth in the 

stipulation clearly established that Attorney D'Arruda failed to 

respond to L.N.'s phone calls during the relevant time period 
No. 2012AP2338-D 

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and thus concluded that Attorney D'Arruda violated 

SCR 20:l.4(a)(4)7 (Count 7). 

¶18 Regarding the alleged failure to refund unearned fees, 

the referee noted that L.N. paid Attorney D'Arruda $2,250 and 

the record evidence indicates the cost of the legal services 

Attorney D'Arruda provided exceeded that payment. However, the 

June 2, 2010 fee agreement between L.N. and Attorney D'Arruda's 

law firm stated that L.N. would be provided with "a written 

accounting of all fees incurred in the matter and a refund of 

any advanced fees, if any, that have not been earned or advanced 

costs that have not been used." Attorney D'Arruda testified 

that he was willing to pay $250 as a refund to L.N. for unearned 

fees, and the referee recommended this court order Attorney 

D'Arruda to do so. 

¶19 We accept the referee's conclusions and 

recommendations regarding the L.N. matter including the 

dismissal of Count 5 of the complaint. 

¶20 The referee then considered the appropriate discipline 

for Attorney D'Arruda's misconduct. The OLR sought a 60-day 

suspension and restitution to L.N. in the amount of $250 for 

unearned advanced fees. Attorney D'Arruda asked for a public 

reprimand. 

¶21 The referee recommends this court impose a public 

reprimand. The referee acknowledges that Attorney D'Arruda 

 

7 SCR 20:1.4(a)(4) provides that a lawyer shall "promptly 

comply with reasonable requests by the client for 

information; . . . ." 
No. 2012AP2338-D 

9 

previously received a private reprimand, but noted the 

misconduct in this case occurred at a time when Attorney 

D'Arruda faced multiple outside pressures including dissolution 

of his small law firm, divorce, financial pressures, and an 

excessive caseload. The referee explicitly noted that "[f]rom 

the testimony, these pressures and distractions are behind him." 

The referee noted that character witnesses described Attorney 

D'Arruda as a highly experienced criminal lawyer who is 

"competent, dignified and respected." The referee was mindful 

that "[a] suspension at this time and the resulting closure of 

his sole practitioner office for several months could be 

devastating to his law practice." We agree. 

¶22 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. 

¶23 Accordingly, we adopt the referee's findings of fact 

and conclusions of law and determine that a public reprimand is 

the appropriate discipline for Attorney D'Arruda's professional 

misconduct, together with restitution to L.N., and payment of 

full costs. 

¶24 IT IS ORDERED that Attorney Robert Paul D'Arruda is 

publicly reprimanded for his professional misconduct. 

¶25 IT IS FURTHER ORDERED that if he has not already done 

so, within 60 days of the date of this order, Attorney Robert 
No. 2012AP2338-D 

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Paul D'Arruda shall pay $250 in restitution to his former 

client, L.N. 

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

of this order, Attorney Robert Paul D'Arruda shall pay to the 

Office of Lawyer Regulation the costs of this proceeding. 

¶27 IT IS FURTHER ORDERED that restitution is to be

completed before payment of costs to the Office of Lawyer 

Regulation. 

¶28 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. 2012AP2338-D 

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