2015 WI 83



# S UPREME 

# C OURT OF 

# W ISCONSIN

C ASE N O .: 2013AP1619-D C OMPLETE T ITLE : In the Matter of Disciplinary Proceedings

Against Paul A. Strouse, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent,

v. Paul A. Strouse, Respondent-Appellant.

DISCIPLINARY PROCEEDINGS AGAINST STROUSE

O PINION F ILED : July 15, 2015 S UBMITTED ON B RIEFS : O RAL A RGUMENT : April 16, 2015

S OURCE OF A PPEAL : C OURT : C OUNTY : J UDGE :

J USTICES : C ONCURRED : D ISSENTED : N OT P ARTICIPATING : BRADLEY, J. did not participate.

A TTORNEYS : For the respondent-appellant, there were briefs by Dean R. Dietrich and Ruder Ware L.L.S.C. , Wausau, and oral argument by Dean R. Dietrich

.

For the complainant-respondent, there was a brief b y James C. Reiher

and The Schroder Group, S.C. , Waukesha, and oral argument by James C. Reiher

.2015 WI 83

NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2013AP1619-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings Against Paul A. Strouse, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent,

v. Paul A. Strouse, Respondent-Appellant. 

## FILED

JUL 15, 2015

Diane M. Fremgen Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license suspended.

¶1 PER CURIAM. Attorney Paul A. Strouse has appea led a report filed by Referee Kevin L. Ferguson, concludi ng that he engaged in professional misconduct and recommending that this court suspend Attorney Strouse's license to practic e law for 60 days and impose full costs, which total $67,562.12 as of May 6,

2015. ¶2 Having considered the referee's report and the parties' briefs and oral argument on appeal, we con clude thatNo. 2013AP1619-D

2 the referee's findings of fact are supported by sat isfactory and convincing evidence and we accept his conclusions o f law, with one exception: we dismiss the allegation that Atto rney Strouse violated Supreme Court Rule (SCR) 20:8.4(c). We ag ree that Attorney Strouse's misconduct warrants the suspensi on of his license to practice law for 60 days and we impose t he full costs of this proceeding. ¶3 Attorney Strouse was admitted to practice law in Wisconsin in 1991. He practices in Milwaukee, prim arily representing debtors in bankruptcy proceedings. At torney Strouse has received two previous public reprimands for

misconduct that occurred between 2007 and 2009. Pu blic Reprimand of Paul A. Strouse , 2010-2; Public Reprimand of Paul

A. Strouse , 2011-5. In addition, during the pendency of this proceeding, Attorney Strouse received a third publi c reprimand. Public Reprimand of Paul Strouse, 2015-6. ¶4 The Office of Lawyer Regulation (OLR) filed the complaint giving rise to this proceeding on July 22 , 2013, alleging eights counts of professional misconduct c ommitted in four separate client matters. Attorney Strouse fil ed an answer and Referee Ferguson was appointed. Attorney Strou se amended his answer, and discovery and pre-hearing motions f ollowed. ¶5 Shortly before the evidentiary hearing, Attorney Strouse entered into a stipulation with the OLR to withdraw his amended answer and allow entry of judgment regardin g Counts One and Two, pertaining to the matter of F.E. Subseque ntly, theNo. 2013AP1619-D

3 parties entered into a stipulation of facts, includ ing 59

exhibits. ¶6 In June 2014, the referee commenced a four-day evidentiary hearing which included extensive testim ony, more than 100 exhibits, and more than 150 pages of brief ing. The referee issued his report and recommendation on Oct ober 30, 2014. This appeal followed. The court heard oral argument on April 16, 2015. ¶7 When reviewing a referee's report and recommenda tion, the referee, as the finder of fact, is the ultimate arbiter of the credibility of the witnesses. In re Disciplina ry Proceedings Against Alia, 2006 WI 12, ¶71, 288 Wis. 2d 299, 709 N.W.2d 399. We affirm the referee's findings o f fact unless they are clearly erroneous. In re Disciplinary Pro ceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 7 40 N.W.2d

125. We review the referee's conclusions of law de novo. Alia, 2006 WI 12, ¶39. We determine the appropriate leve l of discipline to impose given the particular facts of each case, independent of the referee's recommendation, but be nefitting from it. In re Disciplinary Proceedings Against Wi dule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶8 Each of the client matters raised in the OLR com plaint

will be addressed seriatim.

Matter of F.E. ¶9 Attorney Strouse stipulated that he committed th e misconduct alleged in connection with his represent ation of F.E.No. 2013AP1619-D

4 The facts will be summarized because the admitted m isconduct is relevant to our assessment of appropriate disciplin e. ¶10 F.E. purchased a gas station/convenience store in Milwaukee and, as part of that transaction, F.E. si gned a Commercial Security Agreement that gave Ridgestone Bank (Ridgestone) a security interest in, as relevant he re, certain fuel monitoring equipment. In April 2009, Ridgesto ne started foreclosure proceedings on the gas station, and obt ained a default judgment in June 2009. Also in June 2009, F.E. hired Attorney Strouse. Ridgestone's lawyer began asking Attorney Strouse to arrange for F.E. to return the fuel moni toring equipment. Meanwhile, Attorney Strouse filed a Cha pter 7 bankruptcy petition on behalf of F.E. and, at some point, F.E. delivered the fuel monitoring equipment to Attorney Strouse's office. Attorney Strouse did not give F.E. a recei pt. ¶11 On November 20, 2009, after Attorney Strouse ha d failed to respond to repeated requests for the retu rn of the equipment, the gas station's receiver went unannoun ced to Attorney Strouse's office to collect the fuel monit oring equipment. Attorney Strouse admitted the equipment had been

stolen or lost. ¶12 The complaint alleged and Attorney Strouse late r stipulated that, by failing to clearly identify and appropriately safeguard the fuel monitoring equipme nt left in his possession, notwithstanding his receipt of writ ten notice of Ridgestone's interest in the property, Attorney Str ouse violated SCR 20:1.15(b)(6), which provides, in pertinent par t, thatNo. 2013AP1619-D

5 "[t]he lawyer shall clearly identify and appropriat ely safeguard other property of a client or 3rd party" (Count One ). ¶13 The complaint alleged further and Attorney Stro use stipulated that, by failing to provide a signed, wr itten receipt to F.E. describing the fuel monitoring equipment he had taken into custody and the date of receipt, Attorney Stro use violated SCR 20:1.15(j)(8)b., which provides that "[u]pon ta king custody, as a fiduciary, of any tangible personal property o r securities in bearer form, the lawyer shall provide to the pre vious custodian a signed receipt, with a description of t he property, and the date of receipt" (Count Two). ¶14 We turn to the disputed aspects of this discipl inary

matter.

Matter of G.B. ¶15 Attorney Strouse appeals the referee's conclusi on that he committed two counts of misconduct in his repres entation of G.B. In November 2009, G.B. and his partner, C.W., met with Attorney Strouse to discuss Chapter 7 bankruptcy pr oceedings. Attorney Strouse quoted each a fee of approximately $900 for their respective bankruptcy proceedings, consisting of $300 in filing fees and $600 in legal fees. It is undisput ed that the initial fee quote was less than $1,000. ¶16 On February 3, 2010, they met again and G.B. of fered to provide website design services in exchange for the $600 attorney fee. The OLR alleged that Attorney Strous e orally agreed to G.B.'s suggestion. G.B. claimed he subse quently spent some 15 hours on the website project. Attorney Str ouse disputesNo. 2013AP1619-D

6 this claim, stating that he rejected G.B.'s suggest ion because a longtime friend did his website design. He claims that, instead, he renewed his offer for a "special rate" of $975 conditioned upon receiving $650 up front before fil ing the bankruptcy petition. G.B. gave Attorney Strouse $3 00 for the bankruptcy filing fee that day. ¶17 On March 6, 2010, G.B. met with Attorney Strous e's law associate to review and sign bankruptcy schedules f or his bankruptcy petition. The schedules included Form 2 016(b), which stated that Attorney Strouse had agreed to accept $ 0.00 in attorney's fees and that no balance was due. The f orm also contained the following certification: "I certify that the foregoing is a complete statement of any agreement or arrangement for payment to me for representation of the debtor(s) in this bankruptcy proceeding." ¶18 G.B. stated that he interpreted the $0 as evide nce of the agreement to exchange web design for legal fees . Attorney Strouse maintains that the $0 figure was an error; he stated that the bankruptcy petition had to be filed quickl y because a small claims action had just been filed against G.B

. ¶19 On March 8, 2010, Attorney Strouse filed G.B.'s bankruptcy petition and sent G.B. a letter advising him that the bankruptcy petition had been filed. This letter di d not request any additional fee. ¶20 On or about March 15, 2010, Attorney Strouse an d G.B. spoke by telephone. The substance of that conversat ion is hotly contested. G.B. claimed that Attorney Strouse abru ptly statedNo. 2013AP1619-D

7 that he no longer wanted G.B. to work on the websit e and demanded $750, increasing the total cost of represe ntation to $1,050. Attorney Strouse claims that G.B. realized that most of the work on his bankruptcy case was done and didn't intend to pay his balance. Attorney Strouse acknowledged tha t he "got angry" and demanded payment. ¶21 On March 17, 2010, Attorney Strouse sent G.B. a n invoice for $1,050, reflecting a $300 payment recei ved and a new balance due of $750. A series of oral demands for payment and refusals ensued. G.B. terminated Attorney Strouse' s representation and Attorney Strouse withdrew as cou nsel for G.B.'s bankruptcy case. ¶22 On March 26, 2010, G.B. filed a small claims ac tion against Attorney Strouse in Kenosha County, seeking a refund of his $300 filing fee, and alleging that Attorney Str ouse reneged on a barter for services agreement. On July 21, 20 10, G.B. prevailed at a bench trial. The transcript from th is small claims proceeding reflects that the circuit court f ound that Attorney Strouse reneged on a barter agreement for services. The circuit court deemed significant the $0 in fees claimed in the bankruptcy disclosure. The circuit court award ed G.B. $459.50. ¶23 Turning to this disciplinary proceeding, the re feree concluded that "Attorney Strouse failed to provide to [G.B.] a written fee agreement setting forth the scope of th e representation and the basis or rate of the fees or expenses for representation" and that "Attorney Strouse reneged on anNo. 2013AP1619-D

8 agreement to provide legal services to [G.B.] for $ 900.00 and subsequently failed to abide by the agreement when he increased the fee to $1,050.00 without his client's consent." The referee thus concluded that Attorney Strouse violated SCR 2 0:1.5(b)(1) (Count Three) and SCR 20:8.4(c) (Count Four) in his representation of G.B. ¶24 We first consider whether Attorney Strouse viol ated SCR 20:1.5(b)(1). SCR 20:1.5(b)(l) provides:

The scope of the representation and the basis or rate of the fee and expenses for which the client w ill be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation . . . . If it is reasonably foreseeable that the total cost of the representation to the client, including attorney's fees, will be $1,000 or less, the communication may be oral or in writing. Any changes in the basis or ra te of the fee or expenses shall also be communicated i n writing to the client. ¶25 The American Bar Association Comment to SCR 20:1.5(b)(1) reminds us of the reason for this rule: In a new client-lawyer relationship, however, an understanding as to fees and expenses must be promp tly established. Generally, it is desirable to furnish the client with at least a simple memorandum or cop y of the lawyer's customary fee arrangements that sta tes the general nature of the legal services to be provided, the basis, rate or total amount of the fe e and whether and to what extent the client will be responsible for any costs, expenses or disbursement s in the course of the representation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. ¶26 Attorney Strouse takes issue with the referee's statement that he "failed to provide to [G.B.] a wr itten feeNo. 2013AP1619-D

9 agreement." Attorney Strouse correctly notes that the term "written fee agreement" does not appear in the rule and that no written fee communication is required when it is fo reseeable that the total cost of representation will be $1,00 0 or less. ¶27 However, our rule requires that certain informa tion with respect to fees and expenses be communicated t o the client, whether orally or in writing. The rule expressly r equires that any changes in the basis or rate of the fee or expe nses shall also be communicated in writing to the client. The first paragraph of the Wisconsin Committee Comment to SCR 20:1.5 observes that "communication to the client through the billing statement should clearly indicate that a change in the basis or rate of the fee or expenses has occurred along with an indication of the new basis or rate of the fee or expenses." This was not

done. ¶28 The referee found that "Strouse unilaterally set [G.B.'s] account at his regular flat rate of $1,050 and sent the Statement . . . to [G.B.] because he was angry with [G.B.]" (emphasis added). Attorney Strouse sent a brief co ver letter and a cursory billing statement that makes absolute ly no mention of any change in the fee charged to G.B., much less setting forth the reason for the change. Simply put, the c ursory billing statement submitted to G.B., unilaterally i ncreasing the fee for legal services in the wake of an acrimoniou s telephone call, does not satisfy the requirements of SCR 20:1 .5(b). Notwithstanding the imprecise language in the refer ee's conclusion regarding a "written fee agreement," the recordNo. 2013AP1619-D

10 contains clear, satisfactory, and convincing eviden ce that Attorney Strouse failed to satisfy the requirements of SCR 20:1.5(b)(l). ¶29 We next consider Attorney Strouse's appeal from the referee's conclusion that he violated SCR 20:8.4(c) in his representation of G.B. SCR 20:8.4(c) provides that it is professional misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresent ation." Attorney Strouse contends that the referee failed t o make necessary or sufficient credibility determinations to support his findings and conclusions on this point. We agr ee. Our review would be simpler had the referee made more e xplicit findings to support his conclusion that Attorney St rouse's conduct constituted fraud, deceit, or misrepresenta tion in violation of SCR 20:8.4(c). ¶30 The OLR alleged that, by reneging on an alleged agreement to provide legal services to G.B. in exch ange for website design services or, in the alternative, by agreeing to provide legal services for $900 and subsequently fa iling to abide by that agreement, unilaterally increasing th e fee to $1,050 without his client's consent, Attorney Strou se violated SCR 20:8.4(c). ¶31 The referee made a factual finding that the sma ll claims court "found in favor of [G.B.] and awarded [G.B.] a judgment of $300.00 plus costs against Strouse to b e paid [G.B.]" and that the court "concluded that there wa s an agreement between [G.B.] and Strouse for website de sign servicesNo. 2013AP1619-D

11 in lieu of bankruptcy legal fees [when he stated]: 'I'm satisfied there was an agreement. You were taking it out in work.'" However, the referee's mere recognition of the prior small claims proceeding is insufficient, alone, to sustain a violation of SCR 20:8.4(c) under these facts, parti cularly in view of the lower burden of proof applicable in sma ll claims proceedings. The referee did find that Attorney St rouse "reneged" on an agreement with G.B., but the precis e nature of that agreement remains unclear and t he circumstances as reflected in the referee's findings do not establis h that Attorney Strouse's conduct rose to the level of misrepresentation in violation of SCR 20:8.4(c). T his court will not make a finding that the referee could have made but did

not. See In re Disciplinary Proceedings Against Wood, 122 Wis. 2d 610, 363 N.W.2d 220 (1985) ; see also In re Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984) . We conclude that the referee's findings do not support the conclusion that Attorney Strouse 's conduct constituted misrepresentation in violation of SCR 2 0:8.4(c) and we dismiss this charge.

Matter of Y.W. ¶32 Attorney Strouse appeals Referee Ferguson's determination that Attorney Strouse violated SCR 20 :1.5(b)(1) in his representation of Y.W. In February 2010, Attor ney Strouse agreed to represent Y.W. in a Chapter 7 bankruptcy matter and, on February 4, 2010, Y.W. paid Attorney Strouse $10 0 to startNo. 2013AP1619-D

12 the proceeding. The receipt reflects payment but d oes not state

a balance due. ¶33 On April 3, 2010, Y.W. paid an additional $300. The receipt reflects a balance due of $650. ¶34 On April 15, 2010, Attorney Strouse filed Y.W.' s Chapter 7 bankruptcy petition, without schedules. He sent a billing statement to Y.W. dated April 15, 2010, ref lecting an opening balance of $1,050 with a balance due of $65 0. 1 ¶35 On April 22, 2010, Attorney Strouse met with Y. W. and told her she owed him an additional $700. Attorney Strouse later told the OLR that Y.W. agreed to pay the extr a $50, a claim Y.W. disputes. Attorney Strouse agreed to ac cept two post-dated checks, each in the amount of $350, as p ayment, now reflecting a total cost of representation of $1,100

. ¶36 The same day, Attorney Strouse filed the requis ite bankruptcy schedules with the bankruptcy court and certified to the court that he was charging Y.W. $750 for legal services, of which $50 had been paid, with a balance due of $700

. ¶37 Y.W. filed a grievance claiming that Attorney S trouse agreed to represent her for a fee of $500. Attorne y Strouse denied that he would have agreed to a $500 fee.

1 Attorney Strouse paid $300 for the bankruptcy fili ng fee and $28 for the purchase of three credit reports fr om the $400 he had received from Y.W.No. 2013AP1619-D

13 ¶38 The referee found that "the testimony of [Y.W.] on the total amount of fees was not credible," but conclud ed that Attorney Strouse violated SCR 20:1.5(b)(1) (Count F ive). ¶39 On appeal, Attorney Strouse maintains that the April 15 billing statement sent to Y.W. satisfies t he requirements of SCR 20:1.5(b)(1). We disagree. ¶40 The referee found that Attorney Strouse agreed to represent Y.W. for $1,050, consistent with his stan dard fee for a Chapter 7 bankruptcy proceeding, and that Attorne y Strouse did not "provide [Y.W.] with a written document stating the scope of the representation to be provided and the basis of the fee of $1,050." The evidence supports the referee's findi ngs and we accept them. ¶41 The barebones billing statement sent to Y.W. do es not satisfy the requirements of SCR 20:1.5(b)(1), which required Attorney Strouse to provide to Y.W., in writing, th e scope of the representation and the basis or rate of the fee . Nor, to the extent there was a change in the fee from $1,05 0 to $1,100, does the billing statement adequately denote the ch ange in the basis or rate of the fee or expenses. We agree wit h the referee's conclusion that Attorney Strouse violated SCR 20:1.5(b)(1) in his representation of Y.W.

E.J. and S.J. ¶42 Attorney Strouse next appeals the referee's con clusion that Attorney Strouse violated SCR 20:1.2(a) (Scope of Representation) and SCRs 20:1.4(a)(2), 20:1.4(a)(4) , and 20:1.4(b) (Communication) in his representation of E.J. and S.J.No. 2013AP1619-D

14 He contends that Referee Ferguson fails to make nec essary credibility determinations to support his findings and conclusions. We disagree. ¶43 In 2009, E.J. and S.J. retained Attorney Strous e to file a Chapter 7 bankruptcy proceeding for them. T he parties disagree as to whether Attorney Strouse also agreed to represent them in an adversary proceeding involving the disch arge of

E.J.'s student loans. E.J. and S.J. claim there wa s such an agreement. Attorney Strouse denies it; he claims t hey had a limited agreement whereby he would look into the is sue of potentially representing them on the discharge of t he student

loan and evaluate the likelihood of success of such a claim. ¶44 On August 1, 2009, E.J. and S.J. paid Attorney Strouse $750. No written fee agreement was executed. It i s undisputed that Attorney Strouse filed a Chapter 7 bankruptcy petition on the clients' behalf, which proceeded without incide nt. In November 2009, when E.J. and S.J. sent Attorney Str ouse a final check for his services, however, they inquired abou t the student loan discharge. In early January 2010, E.J. and S. J. handdelivered to Attorney Strouse's office a letter exp ressing concern about Attorney Strouse's failure to return their calls or communicate about the bankruptcy matter and the student loan issue. Attorney Strouse did not respond. ¶45 On January 31, 2010, E.J. and S.J. again wrote to Attorney Strouse about the student loan issue, requ esting information regarding a hearing date. Attorney Str ouse did not respond. On February 4, 2010, E.J. sent another le tter toNo. 2013AP1619-D

15 Attorney Strouse regarding the student loan issue. Attorney Strouse did not respond. ¶46 Finally, E.J. and S.J. claim that on April 8, 2 010, they met with Attorney Strouse to discuss the stude nt loan matter. At this meeting, they say Attorney Strouse admitted that he missed a relevant filing date and returned their file. Attorney Strouse refutes this claim. ¶47 During the ensuing disciplinary proceeding, Att orney Strouse told the OLR that he had prepared and deliv ered a legal research memorandum to E.J. and S.J. addressing the student loan issue. E.J. and S.J. deny receiving any such memor andum and deny that Attorney Strouse discussed the contents o f such a memo

with them. ¶48 The referee concluded that, by failing to consu lt with E.J. and S.J. regarding the means by which the obje ctives of the representation were to be pursued, including the di scharge of student loan debt, Attorney Strouse violated SCR 20 :1.2(a) 2 and SCR 20:1.4(a)(2) 3 (Count Six). In addition, the referee concluded that, by failing to explain to E.J. and S .J. the issues associated with the discharge of student loa n debt,

2 SCR 20:1.2(a) provides, in relevant part, "Subject to pars. (c) and (d), a lawyer shall abide by a client 's decisions concerning the objectives of representation and, as required by SCR 20:1.4, shall consult with the client as to the means by which they are to be pursued."

3 SCR 20:1.4(a)(2) provides that a lawyer shall "rea sonably consult with the client about the means by which th e client's objectives are to be accomplished."No. 2013AP1619-D

16 including the cost to pursue an adversary proceedin g, the likelihood of success of such efforts, and the resu lts of his research into the viability of such a claim, Attorn ey Strouse failed to explain matters sufficiently to enable E. J. and S.J. to make informed decisions regarding the representa tion. In so doing, Attorney Strouse violated SCR 20:1.4(b) 4 (Count Seven). In addition, the referee concluded that, by failing to respond to the multiple requests for information from E.J. and S.J., including letters dated November 7, 2009, January 4 , 2010, January 31, 2010, and February 4, 2010, Attorney St rouse violated SCR 20:1.4(a)(4) 5 (Count Eight). ¶49 Attorney Strouse appeals, claiming, inter alia, that the referee's findings are insufficient to support these charges and that his credibility determinations are clearly erroneous. ¶50 The referee found that that E.J. and S.J. sough t Attorney Strouse's representation in filing for Cha pter 7 bankruptcy and to discharge E.J.'s student loan deb t. The referee found that "[b]oth [E.J. and S.J.] offered credible testimony there was such an agreement." The refere e explicitly stated that, "[h]aving weighed the contradictory te stimony and evidence on the issue of the scope of representatio n, I did not find the testimony of Strouse to be credible ." (Emphasis

4 SCR 20:1.4(b) provides that "[a] lawyer shall expl ain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa tion."

5 SCR 20:1.4(a)(4) provides that a lawyer shall "pro mptly comply with reasonable requests by the client for i nformation."No. 2013AP1619-D

17 added.) The referee found that Attorney Strouse fa iled to respond to E.J.'s and S.J.'s repeated requests for information related to the discharge of the student loan. The referee found that Attorney Strouse never consulted with E.J. and S.J. concerning the means by which the objectives of his representation were to be pursued to secure the dis charge of the student loan. The referee found that Attorney Stro use never explained to E.J. and S.J. the issues associated wi th the discharge of the student loan debt, the costs of pu rsuing any adversary proceedings, the likelihood of success, o r the results of any research he had done. The referee found tha t Attorney Strouse never explained matters sufficiently to E.J . and S.J. to enable them to make informed decisions regarding th e student loan discharge. The evidence supports these findin gs and we adopt them. ¶51 Attorney Strouse contends that this is not enou gh and proceeds to outline a number of additional factual findings he

thinks the referee should have made. He reminds th e court that the "testimony, documentation, and argument the par ties presented to Referee Ferguson was substantial and h otly contested in many respects." He claims that Refere e Ferguson failed to make necessary credibility determinations or to include specific findings of fact to support his co nclusions of law. He suggests that Referee Ferguson's finding t hat he "did not find the testimony of Strouse to be credible" i s somehow inadequate and "does not go to the merits of the pa rties' contested arguments."No. 2013AP1619-D

18 ¶52 From our perspective, Attorney Strouse simply disagrees with the referee's credibility determinat ions, as evidenced by his claim that it is "contrary to the evidence." He suggests that the referee should have made a dif ferent credibility determination. Attorney Strouse states : [E.J.'s] credibility must be doubted in this respec t as well as others concerning the representation. First, she has a mental condition that affects memo ry and ability to remember the dates of events. This was demonstrated numerous times throughout the hearing. She denied meeting with Strouse on July 22, 2009, which was corroborated by Strouse's calendar and th e intake questionnaire that was completed and dated b y her. She could not recall the date of the meeting between [E.J. and S.J.] and Strouse on September 12 , 2009, to sign the bankruptcy petition. She denied meeting with Strouse on January 20, 2009, an event listed on Strouse's calendar maintained in the norm al course of business. Further, she was fixated on th e adversary proceeding as the method to discharge her student loans. This is demonstrated in the fact th at she brought case law with her at the initial meetin g on the issue, allegedly other case law in a subsequ ent meeting, and in her written communications to Strou se. (Record citations omitted.) Attorney Strouse thus claims that

he is more credible than E.J. He asks the court to find Referee Ferguson's credibility determination with respect t o E.J. clearly erroneous. ¶53 We reject this invitation to disregard the refe ree's credibility determination. The referee is the ulti mate arbiter of the facts and credibility of witnesses and there is no reason to deem these findings clearly erroneous. E.J. was very forthright in her testimony about the fact that a m edical condition affected her ability to recall specific d etails suchNo. 2013AP1619-D

19 as dates, but her testimony as to the substance of what occurred was clear and bolstered by documentary evidence, in cluding letters to Attorney Strouse. The referee's finding s of fact and conclusions of law relating to this matter are subs tantiated by clear and convincing evidence from the record and w e adopt them. ¶54 We turn to the question of appropriate discipli ne. The OLR sought and the referee recommends a 60-day suspension. Attorney Strouse seeks a private reprimand or, at m ost, a public reprimand. Attorney Strouse reasons that the matte r of F.E.

involved minor technical violations and that the ot her allegations are similarly de minimus. ¶55 Even with our decision to dismiss the alleged violation of SCR 20:8.4(c) (Count Four), the record before this court and the concept of progressive discipline sup port a 60-day suspension. The record here suggests that Attorney Strouse is a busy, aggressive lawyer who serves an important rol e in the Milwaukee legal community, providing affordable ban kruptcy representation. It bears noting that Attorney Stro use successfully obtained bankruptcy discharges for all the clients at issue in this proceeding. We also accept and ac knowledge the mitigating fact that Attorney Strouse has taken ste ps to establish better written fee communications in his office. However, the record before us also reveals a persis tent pattern of failure to abide by the requirements of our rule s of professional conduct. Attorney Strouse has thrice been publicly reprimanded by this court, once for conduct that al so resulted in being suspended by a bankruptcy court.No. 2013AP1619-D

20 ¶56 While the misconduct committed in this matter i s not identical, we observe a continuing pattern of disre gard of supreme court rule requirements. Representation an ticipated to exceed $1,000 requires a written fee communication. See SCR 20:1.5. Unilateral changes to fees charged to clients certainly require more than a single line on an inv oice. We note, with some concern, repeated discrepancies bet ween disclosures on bankruptcy filings and invoices subm itted to clients, a factor that adds to client confusion. A s the referee observed, "by failing to accept responsibility for his actions and attempting to shift the blame to others for the poor handling of these matters, Attorney Strouse demonst rates that he lacks both remorse and insight into the impact of h is repeated violations on his clients and other third parties." ¶57 We acknowledge that none of the cases cited by the parties are directly on point. This is not unusual in disciplinary matters. We find In re Disciplinary P roceedings Against Kitchen, 2004 WI 83, 273 Wis. 2d 279, 682 N .W.2d 780 provides useful guidance, and ultimately, we accept the referee's recommendation for a 60-day suspension as consistent with the principles of progressive discipline. ¶58 Finally, we consider Attorney Strouse's objecti on to the costs of this proceeding. We consider the fact ors set forth in SCR 22.24(1m), which include the number of count s charged, contested, and proven; the nature of the misconduct ; the level of discipline sought and recommended; cooperation w ith the OLR; prior discipline; and other relevant circumstances. We are notNo. 2013AP1619-D

21 persuaded that this scope of the appeal was enlarge d due to Referee Ferguson's insufficient credibility determi nations or failure to discuss the parties' arguments. Full co sts are appropriate in this vigorously litigated case. ¶59 IT IS ORDERED that the license of Paul A. Strou se to practice law in Wisconsin is suspended for a period of 60 days, effective August 14, 2015. ¶60 IT IS FURTHER ORDERED that within 60 days of th e date of this order, Paul A. Strouse shall pay to the Off ice of Lawyer Regulation the costs of this proceeding, which are $67,562.12. ¶61 IT IS FURTHER ORDERED that Paul A. Strouse shal l comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶62 IT IS FURTHER ORDERED that compliance with all conditions of this order is required for reinstatem ent. See SCR 22.28(2). ¶63 ANN WALSH BRADLEY, J., did not participate.No. 2013AP1619-D

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