2013 WI 25

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP371-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings

Against Richard J. Podell, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

Richard J. Podell,

Respondent.

DISCIPLINARY PROCEEDINGS AGAINST PODELL

OPINION FILED: March 22, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED:

DISSENTED:

NOT PARTICIPATING:

ATTORNEYS:
2013 WI 25

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2012AP371-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings

Against Richard J. Podell, Attorney at Law:

Office of Lawyer Regulation,

Complainant,

v.

Richard J. Podell,

Respondent.

FILED

MAR 22, 2013

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Complaint dismissed.

¶1 PER CURIAM. Pending before the court is a report

filed by Referee Richard C. Ninneman recommending this court

dismiss a disciplinary complaint filed against Attorney

Richard J. Podell. No appeal has been filed, so we consider

this matter pursuant to SCR 22.17(2).

1

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
No. 2012AP371-D

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¶2 We agree with the referee's conclusion that the facts

of this case do not support a conclusion that Attorney Podell's

conduct violated SCR 20:8.4(c). We therefore dismiss the

complaint. No costs will be imposed.

¶3 Attorney Podell was admitted to practice law in

Wisconsin in 1969. He practices family law in Milwaukee. He

has not previously been disciplined by the Office of Lawyer

Regulation (OLR).

¶4 On February 21, 2012, the OLR filed a complaint

against Attorney Podell alleging that he engaged in professional

misconduct involving dishonesty, fraud, deceit or

misrepresentation in violation of SCR 20:8.4(c) when he filed

three expense reimbursement requests with the American Bar

Association (ABA) in connection with its 2010 midyear meeting in

Orlando, Florida.

¶5 Attorney Podell was a longstanding active member of

the ABA, serving on numerous committees and holding numerous

office positions. He was a member of the House of Delegates,

was past-Chair of the Family Law Section, was Chair of the

Individual Rights and Responsibilities Section, and also served

as budget officer of the Senior Lawyers Division. Attorney

Podell frequently attended ABA section meetings and ABA House of

Delegates meetings and often submitted requests for financial

reimbursement to different ABA sections.

discipline. The court, on its own motion, may order

the parties to file briefs in the matter.
No. 2012AP371-D

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¶6 The OLR's complaint alleged that Attorney Podell

personally submitted three claims for expense reimbursement

following the 2010 ABA midyear meeting in Orlando, Florida, that

included separate requests for reimbursement of the same

expenses. In total, Attorney Podell sought reimbursement of

$2,371.50 from the ABA.

¶7 Attorney Podell then received a letter from the ABA

advising him he had sent "compound" (duplicate) reimbursement

requests. The ABA then conducted an audit of Attorney Podell's

ABA reimbursement requests for the years 2007, 2008, and 2009,

which revealed that Attorney Podell had submitted duplicate

requests for expense reimbursement to various ABA entities for

those years. The total overpayment by the ABA to Attorney

Podell for these years was $1,155.80.

2

¶8 Attorney Podell admitted that he did not send the

reimbursement requests to the ABA in an appropriate manner. He

expressed embarrassment and regret, repaid the ABA the amounts

calculated as owed, claimed that he often failed to request

reimbursement for ABA-related expenses and, had he done so, the

ABA would have had to pay him considerable sums of money, and

2 Attorney Podell testified that during his 40 years of ABA

service he submitted 200 to 300 such vouchers and from time to

time, ABA staff would point out errors he had made, which he

would then correct and resubmit. Between 2008 and 2010 Attorney

Podell attended 56 ABA meetings outside the state of Wisconsin.

Of these 56 meetings, he only submitted reimbursement vouchers

for approximately 35 meetings.
No. 2012AP371-D

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that he would not submit any further requests for ABA

reimbursement. He immediately sought to rectify his mistake.

¶9 There was testimony at the evidentiary hearing about

the confusing nature of ABA reimbursement policies.

Reimbursement policies for meals and lodging were a per diem

rate, which differed based on the type of meeting attended.

3 The

referee also heard testimony regarding Attorney Podell's

excellent reputation for trustworthiness and honesty.

¶10 The referee found that Attorney Podell submitted

requests for reimbursement of his $207.70 airfare to three

separate ABA entities, totaling $415.40 in duplicate requests.

He also submitted duplicate requests for reimbursement of the

cost of ground transportation in the amount of $168.40, for a

total of $583.80 in so-called compound billing. The referee

found that the OLR failed to establish any compound (duplicate)

billing for lodging/meals.

4

3 For example, on the reimbursement form to the Individual

Rights and Responsibilities Section, lodging and meals were

limited to $100 per day. The reimbursement form to the Senior

Lawyers Division limited lodging expenses to $200 per day. The

reimbursement request to the House of Delegates states that

lodging and meals are not reimbursable, but further below

provides that certain committee members may be reimbursed at the

rate of $100 per day for hotel expenses. The reimbursement

policies are not designed to fully reimburse one for expenses

incurred in attending a meeting.

4 Attorney Podell incurred expenses for the Orlando midyear

meeting in the amount of $2,861.06 ($2,373.36 for lodging and

meals; $337.70 for airfare including the reservation change fee;

$125 for ground transportation; and $25 for miscellaneous

expenses). Attorney Podell was reimbursed $832.70, so he

incurred $2,028.36 in expenses for which he was not reimbursed

for this meeting alone.
No. 2012AP371-D

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¶11 When Attorney Podell reimbursed the ABA he was told

that the matter was closed. Nonetheless, in 2010 T. Maxfield

Bahner, a Tennessee attorney and former ABA officer, learned of

this matter from an ABA staff member. The ABA did not ask

Bahner to investigate the matter, but Bahner began pursuing the

matter of his own accord.

¶12 Bahner discussed the issue with numerous individuals

and set up phone conference calls with Attorney Podell during

which an ABA staff member silently listened and Bahner's

secretary also listened and took notes. Indeed, the referee

commented:

[W]atching Bahner testify and considering the number

of people within the ABA who now were aware of this

matter; considering Bahner's rush to judgment that

Podell was guilty of dishonesty from the very outset;

considering Bahner's obsession that Podell should

self-report this to OLR despite advice from others;

considering that phone conversations with his socalled "friend" were silently being listened to by a

notekeeper or ABA staff; this referee is reminded of

the old adage that with friends like this, who needs

enemies.

There is no indication these factual findings are clearly

erroneous.

¶13 We consider whether Attorney Podell's conduct violated

SCR 20:8.4(c). Supreme court rule 20:8.4(c) provides it is

professional misconduct for a lawyer to "engage in conduct

involving dishonesty, fraud, deceit or misrepresentation."

¶14 The referee considered the cases cited by the OLR

inapposite based on his credibility determination that Attorney
No. 2012AP371-D

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Podell's conduct was neither knowing nor intentional.

5 See In re

Disciplinary Proceedings Against Jacobson, 2004 WI 152, ¶50, 277

Wis. 2d 120, 690 N.W.2d 264 (noting that intent can be inferred

from the circumstances, and it is proper for the referee to

assess an attorney's credibility with respect to intent). The

OLR thus failed to convince the referee "that an attorney's

unintentional error or careless mistake in submitting

reimbursement vouchers to the ABA, without more, will support a

finding that the attorney violated SCR 20:8.4(c)."

¶15 The referee deemed it significant that when the errors

were called to Attorney Podell's attention, he not only admitted

the mistake, but sought to correct the same and took full

responsibility for the error. The referee stated:

In observing Podell, this referee finds that Podell's

actions in this matter were not done knowingly,

recklessly, consciously or intentionally for the

purpose of getting a larger reimbursement from the ABA

than he was entitled to for the meeting. . . .

This referee finds that OLR has not proven by

clear, satisfactory and convincing evidence that

Podell engaged [in] professional misconduct involving

dishonesty, fraud, deceit or misrepresentation with

respect to his 2010 expense vouchers to the ABA in

connection with the Orlando midyear meeting.

5 The referee observed, in part, that Attorney Podell has

been actively involved in ABA activities for 40 years, had

political aspirations, and attended multiple meetings of the ABA

outside the state of Wisconsin at considerable financial expense

to Attorney Podell. Given this background, the referee found it

"inconceivable that he would intentionally throw all of this

away by trying to cheat the ABA out of $583.80."
No. 2012AP371-D

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¶16 Thus, the referee concluded the OLR failed to meet its

burden of proof that Attorney Podell violated SCR 20:8.4(c) and

recommended the court dismiss the complaint.

¶17 A referee's findings of fact will not be set aside

unless they are clearly erroneous. We review the referee's

conclusions of law de novo. In re Disciplinary Proceedings

Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675

N.W.2d 747. We conclude that the referee's findings of fact are

not clearly erroneous, and we also uphold the referee's

conclusion of law that Attorney Podell's conduct did not violate

SCR 20:8.4(c). Consequently, we dismiss the OLR's complaint.

No costs will be imposed.

¶18 IT IS ORDERED that the Office of Lawyer Regulation's

complaint is dismissed. No costs are imposed.
No. 2012AP371-D

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