2016 WI 74

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP385-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings 

Against Mary K. Biester, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Mary K. Biester,

 Respondent.

DISCIPLINARY PROCEEDINGS AGAINST BIESTER

OPINION FILED: July 22, 2016

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT:

SOURCE OF APPEAL:

COURT:

COUNTY:

JUDGE:

JUSTICES:

CONCURRED: ABRAHAMSON, J. concurs (Opinion filed).

DISSENTED:

NOT PARTICIPATING: 

ATTORNEYS:
2016 WI 74

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP385-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings 

Against Mary K. Biester, Attorney at Law:

Office of Lawyer Regulation,

 Complainant,

 v.

Mary K. Biester,

 Respondent.

FILED

JUL 22, 2016

Diane M. Fremgen

Clerk of Supreme Court

ATTORNEY disciplinary proceeding. Attorney's license 

suspended. 

¶1 PER CURIAM. We review the report filed by Referee 

Dennis J. Flynn recommending the court suspend Attorney Mary K. 

Biester's license to practice law in Wisconsin for the maximum 

period allowed for multiple violations of supreme court rules, 

including converting client funds. Since no appeal has been 

filed, we review the referee's report and recommendation 

pursuant to Supreme Court Rule (SCR) 22.17(2). Upon careful 

review of the matter, we adopt the referee's findings of fact 

and conclusions of law. We conclude, however, that rather than 
No. 2012AP385-D 

2

suspending Attorney Biester's license for the maximum period 

allowed, a three year and six month suspension of her license is 

an appropriate sanction. Because we noted in our previous order 

imposing a one year suspension that any sanction imposed as a 

result of an additional finding of misconduct shall run 

consecutive to the one year suspension, we deem it appropriate 

to make the three year and six month suspension retroactive to 

November 25, 2014, one year after the previous suspension was 

imposed. We also agree with the referee that Attorney Biester 

should be required to make restitution to the Wisconsin Lawyers' 

Fund for Client Protection and that she should pay the full 

costs of this proceeding, which were $8,712.86 as of December 

18, 2015. 

¶2 Attorney Biester was admitted to practice law in 

Wisconsin in 1979 and practiced in Beloit. As previously noted, 

on November 25, 2013, her license to practice law in Wisconsin 

was suspended for one year. The suspension arose out of 30 

counts of misconduct involving six clients. The misconduct 

included failing to act with reasonable diligence and promptness 

in representing a client; failing to keep the client reasonably 

informed about the status of the matter; failing to explain a 

matter to the extent reasonably necessary to permit the client 

to make informed decisions regarding the representation; 

engaging in conduct involving dishonesty, fraud, deceit or 

misrepresentation; multiple trust account violations; and 

failing to cooperate in the investigation of a grievance filed 

with the Office of Lawyer Regulation (OLR). In re Disciplinary 
No. 2012AP385-D 

3

Proceedings against Biester, 2013 WI 85, 350 Wis. 2d 707, 838 

N.W.2d 79. Her license remains suspended. 

¶3 This disciplinary proceeding involves Count Two of the 

OLR's amended complaint, the only count that was not addressed 

in the 2013 decision. Count Two of the amended complaint 

involved Attorney Biester's representation of L.T. L.T. hired 

Attorney Biester to represent her in a divorce matter in 2008. 

Attorney Biester was experiencing financial problems at that 

time, and her home was the subject of a foreclosure action. 

L.T. had inherited a large sum of money, and Attorney Biester 

advised L.T. she should protect those funds from her husband. 

In February 2009, Attorney Biester's nonlawyer assistant, J.M., 

convinced L.T. to transfer $78,000 of her inherited funds into 

Attorney Biester's client trust account for safekeeping. 

Attorney Biester wire transferred $78,000 from her client trust 

account to the bank that held the first mortgage on Attorney 

Biester's home. Count Two of the OLR's amended complaint 

alleged the following violations of supreme court rules:

COUNT TWO

(Multiple Rule Violations)

24(a). While representing L.T. at the time 

Biester deposited and then disbursed funds belonging 

to L.T. from her client trust account to pay off her 

personal mortgage with Associated Bank, Biester 

represented a client when the representation of that 

client was materially limited to Biester's 

responsibilities to a third person or by her own 
No. 2012AP385-D 

4

personal interest, all in violation of SCR 

20:1.7(a)(2).1

24(b). By failing until August 24, 2009, to 

inform L.T. that her funds had been deposited and 

disbursed from the client trust account and in failing 

to keep L.T. reasonably informed about the status of 

her legal matter, Biester violated SCR 20:1.4(a)(3).2

24(c). With knowledge of a court order limiting 

the transfer of property in the divorce action, and in 

failing to inform L.T. and the Court that L.T.'s funds 

had been deposited in Biester's client trust account 

and then transferred out of the client trust account 

to pay Biester's personal mortgage, Biester disobeyed 

an obligation under the rules of a tribunal, in 

violation of SCR 20:3.4(c).3

24(d). By depositing funds belonging to L.T. 

into her client trust account and converting those 

funds for the purpose of paying her mortgage 

obligation and in failing to inform her client and the 

Court of these events, Biester engaged in conduct 

involving dishonesty, fraud, deceit, or 

misrepresentation, in violation of SCR 20:8.4(c).4

 

1 SCR 20:1.7(a)(2) provides: "Except as provided in par. 

(b), a lawyer shall not represent a client if the representation 

involves a concurrent conflict of interest. A concurrent 

conflict of interest exists if there is a significant risk that 

the representation of one or more clients will be materially 

limited by the lawyer's responsibilities to another client, a 

former client or a third person or by a personal interest of the 

lawyer." 

2 SCR 20:1.4(a)(3) provides: "A lawyer shall keep the 

client reasonably informed about the status of the matter." 

3 SCR 20:3.4(c) provides: "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." 

4 SCR 20:8.4(c) provides: "It is professional misconduct 

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

deceit or misrepresentation." 
No. 2012AP385-D 

5

24(e). In failing to notify L.T. in writing of 

the receipt of funds in which L.T. had an interest, in 

failing to promptly deliver to L.T. any funds to which 

L.T. was entitled to receive, and in failing to 

provide a full accounting regarding the distribution 

of L.T.'s funds to L.T., Biester violated SCR 

20:1.5(d)(1) and SCR 20:1.15(d)(2).5

¶4 Referee Flynn also presided over the earlier 

disciplinary proceeding. When the referee issued his first 

report in 2013, there was a possibility that criminal charges 

might be filed against Attorney Biester. In order to protect 

Attorney Biester's Fifth Amendment right against selfincrimination, the referee stayed proceedings as to Count Two. 

In March of 2015, the OLR notified this court that the Wisconsin 

Department of Justice had determined it will not criminally 

prosecute Attorney Biester for her conduct involving L.T. 

 

5 Effective July 1, 2016, substantial changes were made to 

Supreme Court Rule 20:1.15, the "trust account rule." See S. 

Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). 

Because the conduct underlying this case arose prior to July 1, 

2016, unless otherwise indicated, all references to the supreme 

court rules will be to those in effect prior to July 1, 2016.

SCR 20:1.15(d)(1) and SCR 20:1.15(d)(2) provide: "(1) Upon 

receiving funds or other property in which a client has an 

interest, or in which the lawyer has received notice that a 3rd

party has an interest identified by a lien, court order, 

judgment, or contract, the lawyer shall promptly notify the 

client or 3rd party in writing. Except as stated in this rule 

or otherwise permitted by law or by agreement with the client, 

the lawyer shall promptly deliver to the client or 3rd party any 

funds or other property that the client or 3rd party is entitled 

to receive. 

(2) Upon final distribution of any trust property or upon 

request by the client or a 3rd party having an ownership 

interest in the property, the lawyer shall promptly render a 

full written accounting regarding the property."
No. 2012AP385-D 

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Criminal charges are apparently pending against J.M. On May 12, 

2015, this court granted the OLR's motion to lift the stay of 

proceedings with respect to Count Two and further ordered that 

the matter be referred to a referee for additional proceedings 

regarding Count Two of the amended complaint. Referee Flynn was 

again appointed to preside over the proceedings regarding Count 

Two of the amended complaint. 

¶5 An evidentiary hearing in this matter was held on 

November 16, 2015. The only witnesses to testify at the hearing 

were Attorney Biester and Attorney Arthur K. Thexton, the 

character witness called by Attorney Biester. Attorney Thexton 

stated that Attorney Biester has a reputation for being truthful 

and honest. He also said he knows of J.M. from a time in the 

1980s when he was a Wisconsin district attorney and he secured a 

conviction against J.M. for criminal fraud. The conviction 

resulted in a prison sentence for J.M.

¶6 The referee issued his report and recommendation on 

Count Two of the amended complaint on December 1, 2015. The 

referee noted that in its case in chief, OLR presented the 

videotaped deposition of L.T. L.T. testified that her 

interaction with Attorney Biester regarding her divorce was 

almost exclusively through J.M. L.T. said she was advised by 

Attorney Biester, acting through J.M., to transfer $78,000 into 

Attorney Biester's client trust account as a way of protecting 

those funds from her husband in the divorce proceeding. L.T. 

said she learned from J.M. about a month after transferring the 

$78,000 that the money had been used to purchase a home that 
No. 2012AP385-D 

7

J.M. was going to remodel and then "flip" it and that J.M. was 

going to give L.T. $10,000 to boot within a month. L.T. said 

when she heard this she was furious and wanted her money back. 

¶7 L.T. testified that in August 2009 Attorney Biester 

told L.T. that she had learned J.M. had taken the money from 

Attorney Biester's client trust account and had paid off 

Attorney Biester's mortgage on the home that was then in 

foreclosure. L.T. wrote a letter to the court in the divorce 

matter and explained what had happened. The court allowed L.T. 

to obtain new counsel. L.T.'s divorce was ultimately finalized 

but because of the way the $78,000 had been handled, that amount 

was determined to be comingled and viewed as marital property. 

L.T. subsequently made a claim to the Wisconsin Lawyers' Fund 

for Client Protection, which awarded her a full refund of the 

$78,000 due to her being the victim of fraud. 

¶8 In his report, the referee noted that Attorney Biester 

claimed she did not know that J.M. had a criminal fraud record 

and did not know the $78,000 that was deposited into her client 

trust account came from L.T. She said J.M. alone made 

arrangements for L.T. to put the funds into the trust account 

and it was not until later that Attorney Biester learned from 

J.M. that the source of the $78,000 was L.T. and some associates 

of J.M. 

¶9 The referee found L.T.'s testimony to be credible, and 

he found that Attorney Biester was not credible when she claimed 

she did not know that L.T. was the source of the $78,000. The 

referee noted that the $78,000 was the exact same amount of 
No. 2012AP385-D 

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money that Attorney Biester believed L.T. had received as an 

inheritance and was at issue in the division of the marital 

estate in the divorce action. The referee further noted that 

Attorney Biester was actually at her client trust account bank 

when the $78,000 was wired and received. The referee opined 

this suggests that Attorney Biester knew the funds were coming 

and she was immediately prepared to use those funds for her own 

benefit. 

¶10 The referee said a reasonable inference from the 

evidence was that Attorney Biester and J.M. were acting together 

with full knowledge of what was occurring, and he said Attorney 

Biester had full knowledge that her client's funds were being 

wrongfully placed into her client trust account and were 

thereafter wrongfully converted to Attorney Biester's personal 

use. The referee said:

She knew fully what was occurring on 10 February 2009 

in terms of obtaining and converting her client's 

$78,000. She tried to cover up her wrongful conduct 

by placing the entire blame on her legal assistant, 

J.M. However, Respondent's failure to notify her 

client was intentional under the credible evidence and 

no reasonable excuse for Respondent not informing L.T. 

was provided. 

¶11 For these reasons, the referee found that the OLR 

presented clear, satisfactory and convincing evidence of 

misconduct by Attorney Biester as alleged in each of the 

averments in Count Two of the amended complaint. 

¶12 Turning to the appropriate sanction, the referee said 

the misconduct at issue here is quite serious. The referee said 
No. 2012AP385-D 

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the misconduct was aggravated because Attorney Biester continued 

to claim that she was innocent of wrongdoing and that she had 

been a victim of fraud by her employee. The referee said 

Attorney Biester took advantage of her relationship with L.T. 

and worked with her employee to have the $78,000 deposited into 

Attorney Biester's client trust account. The referee said, "The 

actions of this attorney have brought distain [sic] and dishonor 

to the entire legal profession in our State. A client was 

seriously harmed when she should have been protected."

¶13 The referee pointed to several mitigating factors. He 

noted that prior to her 2013 suspension, Attorney Biester had no 

discipline imposed during her 36-year legal career. The referee 

further noted that Attorney Biester has various health issues. 

He also pointed out that she has fully served the one year 

suspension that was previously ordered by this court. He also 

noted that Attorney Biester states she is now living on a very 

meager monthly Social Security award. The referee also noted 

Attorney Biester says she does not know where she would get the 

funds to meet her continuing legal education and ethics course 

requirements in the event she were to seek reinstatement of her 

law license in the future. 

¶14 The referee concluded that Attorney Biester's license 

to practice law should be suspended for the maximum period 
No. 2012AP385-D 

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allowed.6 The referee also recommends that Attorney Biester be 

ordered to pay the full costs of this proceeding and that she be 

ordered to reimburse the Wisconsin Lawyers Fund for Client 

Protection for the $78,000 that it paid to L.T. 

¶15 A referee's findings of fact are affirmed unless 

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. The court may impose 

whatever sanction it sees fit, 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.

¶16 There is no showing that any of the referee's findings 

of fact are clearly erroneous. According, we adopt them. We 

also agree with the referee's conclusions of law that Attorney 

Biester violated the supreme court rules set forth above. 

¶17 With respect to the appropriate level of discipline, 

upon careful review of the matter, we conclude that rather than 

suspending Attorney Biester's license for the maximum period 

allowed, retroactive to November 25, 2013, Attorney Biester's 

license should be suspended for three years and six months 

retroactive to November 25, 2014.

 

6 We are unsure what the referee meant by the term "the 

maximum period allowed." The most severe sanction this court 

can impose is the revocation of an attorney's license. An 

attorney whose license has been revoked may petition for 

reinstatement five years after the effective date of revocation. 

See SCR 22.29(2). A suspension for "the maximum period allowed" 

would presumably be approximately four years and eleven months. 
No. 2012AP385-D 

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¶18 As part of its order imposing the one year suspension 

of Attorney Biester's Wisconsin law license, this court 

specifically ordered that in the event the stay of proceedings 

relating to Count Two of the amended complaint was lifted and 

there was an additional finding of misconduct as to Count Two, 

"any sanction imposed as a result of that misconduct shall run 

consecutive to the one year suspension imposed by the terms of 

this order." Disciplinary Proceedings Against Biester, 350 

Wis. 2d 707, ¶33. In order for the sanction imposed in the 

instant case to run consecutive to the prior one year 

suspension, the new sanction must be effective November 25, 

2014. 

¶19 We agree that the misconduct at issue here was very 

serious, but we are not convinced that it rises to the level of 

warranting a suspension of Attorney Biester's law license that 

approaches five years. Although no two disciplinary proceedings 

are identical, we find the decision in In re Disciplinary 

Proceedings Against Carter, 2014 WI 126, 359 Wis. 2d 70, 856 

N.W.2d 595 to be somewhat similar. In Carter, an attorney who 

had been in practice for nearly 40 years pled no contest to 11 

counts of misconduct, including converting over $72,000 of a 

client's funds. Carter's law license was suspended for three 

years. Mitigating factors in Carter were the attorney's lack of 

previous misconduct and his expression of remorse. Aggravating 

factors included the fact that the attorney's conduct was 

reckless and highly unprofessional and the attorney initially 

accused the client of trying to take advantage of him. 
No. 2012AP385-D 

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¶20 In this case, Attorney Biester practiced law for over 

30 years before being disciplined. Attorney Biester converted a 

similar amount of money as Attorney Carter. However, unlike 

Attorney Carter, Attorney Biester has still not accepted full 

responsibility for her actions and instead continues to blame 

her former employee and portray herself as a victim. For all of 

these reasons, we conclude that a three year and six month 

suspension of Attorney Biester's license, retroactive to 

November 25, 2014, is an appropriate sanction. 

¶21 We agree with the referee that Attorney Biester should 

be required to reimburse the Wisconsin Lawyers' Fund for Client 

Protection and that she should also be required to pay the full 

costs of this proceeding. 

¶22 IT IS ORDERED that the license of Mary K. Biester to 

practice law in Wisconsin is suspended for a period of three 

years and six months, retroactive to November 25, 2014.

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

of this order, Mary K. Biester shall make restitution in the 

amount of $78,000 to the Wisconsin Lawyers' Fund for Client 

Protection. 

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

of this order, Mary K. Biester shall pay to the Office of Lawyer 

Regulation the costs of this proceeding, which are $8,712.86 or 

enter into a payment agreement plan with the Office of Lawyer 

Regulation for the full payment of costs over a period of time.
No. 2012AP385-D 

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¶25 IT IS FURTHER ORDERED that the restitution specified 

above is to be completed prior to paying costs to the Office of 

Lawyer Regulation. 

¶26 IT IS FURTHER ORDERED that compliance with all 

conditions of this order is required for reinstatement. See SCR 

22.29(4)(c).
No. 2012AP385-D.ssa

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¶27 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the 

court's decision and order as to the discipline imposed in this 

matter. I write separately to address costs and restitution.

¶28 Attorney Biester has been ordered to pay the Office of 

Lawyer Regulation $8,712.86 in costs and to make restitution in 

the amount of $78,000 to the Wisconsin Lawyers' Fund for Client 

Protection. In the event Attorney Biester petitions for the 

reinstatement of her license to practice law in Wisconsin, she 

will be required to demonstrate that she has complied fully with 

the terms of the order of suspension, see SCR 22.29(4)(c), and 

that she has made restitution to or settled all claims of 

persons injured or harmed by her misconduct or explained the 

failure or inability to do so. See SCR 22.29(4m).

¶29 If an attorney has satisfied all of the requirements 

set forth in SCRs 22.31(1) and 22.29(4)(a)-(4m), his or her 

license to practice law may be reinstated notwithstanding the 

failure to pay costs or make restitution provided the attorney 

has been unable to do so due to a lack of financial resources.

I write separately to clarify that Attorney Biester's inability 

to pay costs or make restitution, standing alone, would not 

automatically bar her from regaining her law license. See, 

e.g., In re Disciplinary Proceedings Against Widule, 2012 WI 63, 

341 Wis. 2d 493, 817 N.W.2d 822; In re Disciplinary Proceedings 

Against Gilbert, 2002 WI 102, 255 Wis. 2d 311, 647 N.W.2d 845.
No. 2012AP385-D.ssa

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