Office of Lawyer Regulation v. Stanley Whitmore Davis

O
                                                               

2021 WI 12

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2019AP2405-D


COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Stanley Whitmore Davis, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Stanley Whitmore Davis,
                                 Respondent.

                            DISCIPLINARY PROCEEDINGS AGAINST DAVIS

OPINION FILED:         February 17, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam.
NOT PARTICIPATING:



ATTORNEYS:
                                                                           

2021 WI 12

                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.   2019AP2405-D


STATE OF WISCONSIN                               :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Stanley Whitmore Davis,
Attorney at Law:

Office of Lawyer Regulation,
                                                                        FILED
           Complainant,                                            FEB 17, 2021

      v.                                                              Sheila T. Reiff
                                                                   Clerk of Supreme Court

Stanley Whitmore Davis,

           Respondent.




      ATTORNEY   disciplinary          proceeding.          Attorney's         license

revoked.



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

recommendation filed by Referee David G. Deininger.                       The report

recommends   that    we    accept     Attorney       Stanley      Whitmore       Davis'

amended petition for consensual license revocation, order him to

pay   restitution,   and     revoke    his    license      to    practice      law     in

Wisconsin.   Attorney Davis is the subject of an Office of Lawyer

Regulation   (OLR)        disciplinary       complaint       alleging        that      he
committed 11 counts of professional misconduct in two client
                                                                    No.    2019AP2405-D



matters.    He is also the subject of two pending grievances that

have not yet been fully investigated by the OLR.

    ¶2      We   agree     that     both       revocation    and   restitution     are

appropriate, and we agree that Attorney Davis shall pay the full

costs of this proceeding, which are $1,497.67 as of October 8,

2020.

    ¶3      Attorney Davis was admitted to the practice of law in

Wisconsin in 1998.            He currently resides in Orlando, Florida.

His law license is presently suspended for both disciplinary and

administrative reasons.             In June 2020 we issued a per curiam

decision suspending Attorney Davis' law license for one year for

36 counts of professional misconduct committed in eight client

matters.         That    misconduct        included        practicing     law     while

suspended, failure to inform clients of his suspensions, neglect

of client matters, and failure to account for advanced fees or

to refund unearned fees.            In re Disciplinary Proceedings Against

Davis, 

2020 WI 48

, ¶11, 

392 Wis. 2d 21

, 

943 N.W.2d 885

.

    ¶4      His law license has                been administratively suspended
for failure to pay State Bar dues and failure to provide a

required trust account certification since November 2, 2018.                         It

has also been administratively suspended for failure to comply

with CLE reporting requirements since June 5, 2019.

    ¶5      On    December      20,     2019,      while    the    above-referenced

disciplinary      matter      was     still      pending,    the   OLR    filed     the

disciplinary complaint now before us.                 In it, Attorney Davis was

charged with 11 counts of professional misconduct in two client
matters    and   the    OLR    sought      a    six-month    license      suspension,
                                           2
                                                                             No.     2019AP2405-D



restitution, and costs.                   Attorney Davis was personally served,

but did not file an answer to the complaint.                                   We appointed

Referee David G. Deininger to preside over this matter.

       ¶6     Attorney Davis attempted to resolve all of his then

pending disciplinary matters by filing a Petition for Revocation

by Consent on May 19, 2020.                     However, by the time he filed that

petition,         our    review      of    the     first     disciplinary          matter     was

complete      and       our    June       2020    opinion       was     awaiting       release.

Accordingly, we dismissed Attorney Davis' initial petition for

license revocation and directed the parties to proceed in this

matter.       We        further     directed       the    parties       to   advise     Referee

Deininger if Attorney Davis opted to file an amended Petition

for Revocation by Consent.                  He subsequently did so, the referee

has issued a report, and the matter is now properly before us.

       ¶7     We first consider the pending disciplinary complaint.

The first five counts arise from Attorney Davis' representation

of    D.R.        D.R.    retained        Attorney        Davis    in   February       2017    to

represent         him    regarding        his    employment        termination        from    the
Wisconsin         Department        of    Children        and     Families.          D.R.    paid

Attorney Davis $3,500 in advanced fees to represent him.                                     Over

the next two years, Attorney Davis repeatedly failed to notify

D.R. when Attorney Davis' law license was suspended; continued

his   representation           of    D.R.       during    these     license        suspensions;

missed      the    deadline       for     filing      a   Notice      of     Claim    with    the

Wisconsin Attorney General (a prerequisite for filing suit on

D.R.'s termination); and did not provide D.R.'s case file to him
when requested.               After D.R. filed a grievance with the OLR,
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                                                 No.   2019AP2405-D



Attorney Davis failed to respond to the OLR's request for a

response.

    ¶8      Based on the forgoing, the OLR alleged that Attorney

Davis' handling of the D.R. matter violated a number of the

rules of professional conduct, as follows:

    Count One: By failing to notify D.R. of the May 31,
    2017 suspension of his Wisconsin law license, or his
    subsequent suspensions, and his consequent inability
    to    practice    law,   Attorney    Davis    violated
    SCR 22.26(1)(a), enforceable via SCR 20:8.4(f).2
                    1


    Count Two: By continuing to represent and provide
    legal advice to D.R. following the May 31, 2017
    suspension of his Wisconsin law license, Attorney
    Davis   violated  SCR 10.03(6),3   SCR 22.26(2),4 and
    SCR 31.10(l), enforceable via SCR 20:8.4(f).
                 5


    1   SCR 22.26(1)(a) provides:

         On or before the effective date of license
    suspension or revocation, an attorney whose license is
    suspended or revoked shall 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.
    2  SCR 20:8.4(f) provides:  "It is professional misconduct
for a lawyer to violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
    3   SCR 10.03(6) provides:

         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
    assessments may practice law during the period of the
    suspension.
    4   SCR 22.26(2) provides:

                                    4
                                                 No.   2019AP2405-D


    Count Three: By misapprehending the deadline and
    thereby missing the 120-day deadline to file a notice
    of claim for D.R.'s termination, Attorney Davis
    violated SCR 20:1.1.6




         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.
    5   SCR 31.10(1) provides:

         If a lawyer fails to comply with the attendance
    requirement of SCR 31.02, fails to comply with the
    reporting requirement of SCR 31.03(1), or fails to pay
    the late fee under SCR 31.03(2), the board shall serve
    a notice of noncompliance on the lawyer. This notice
    shall advise the lawyer that the lawyer's state bar
    membership   shall  be  automatically   suspended  for
    failing to file evidence of compliance or to pay the
    late fee within 60 days after service of the notice.
    The board shall certify the names of all lawyers so
    suspended under this rule to the clerk of the supreme
    court, all supreme court justices, all court of
    appeals and circuit court judges, all circuit court
    commissioners appointed under SCR 75.02(1) in this
    state, all circuit court clerks, all juvenile court
    clerks, all registers in probate, the executive
    director of the state bar of Wisconsin, the Wisconsin
    State Public Defender's Office, and the clerks of the
    federal district courts in Wisconsin.   A lawyer shall
    not engage in the practice of law in Wisconsin while
    his or her state bar membership is suspended under
    this rule.
    6  SCR 20:1.1 provides:   "A lawyer shall provide competent
representation to a client.    Competent representation requires
the legal knowledge,     skill, thoroughness and preparation
reasonably necessary for the representation."

                                 5
                                                            No.    2019AP2405-D


       Count Four By failing to return D.R.'s               case   file,
       Attorney Davis violated SCR 20:1.16(d).7

       Count Five: By failing to respond to the OLR's April
       11, 2019 request for a response to D.R.'s grievance,
       Attorney Davis violated SCR 22.03(2),8 enforceable via
       SCR 20:8.4(h).9
       ¶9      The remaining allegations in the OLR complaint relate

to Attorney Davis' representation of the National Association to

Stop       Guardian   Abuse,   Inc.   and   related   parties   (collectively

       7   SCR 20:1.16(d) provides:

            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.
       8   SCR 22.03(2) provides:

            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.

       SCR 20:8.4(h) provides:
       9                         "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)."

                                        6
                                                               No.    2019AP2405-D



NASGA).     On May 31, 2017, Attorney Davis' Wisconsin law license

was   administratively     suspended     for    non-compliance         with     CLE

reporting     requirements.     On   August     1,     2017,   NASGA    retained

Attorney Davis to represent them in an ongoing dispute with

another     advocacy   group.   Attorney       Davis    was    paid    $7,500    in

advanced fees for that representation.

      ¶10    Attorney Davis did not inform NASGA that his Wisconsin

law license was suspended and he failed to advise them of a

subsequent license suspension for failure to pay bar dues.                      As

the referee observed:

      Over the ensuing eighteen months, Davis did not inform
      his clients of his license suspensions; prepared two
      cease and desist letters but did not follow up with
      further actions regarding the opposing party's alleged
      defamation; did not respond to requests from his
      clients for status updates; and did not claim
      certified letters from his clients in which they had
      requested a refund of the fees they had paid him.
The client filed a grievance and Attorney Davis then failed to

respond to the OLR's requests for information.

      ¶11     Based on the forgoing, the OLR alleged, as follows:

      Count Six: By representing and providing legal advice
      to   NASGA  while   his  Wisconsin  law  license  was
      suspended, Attorney Davis violated SCR 10.03(6),
      SCR 22.26(2),   and   SCR 31.10(1),  enforceable  via
      SCR 20:8.4(f).

      Count Seven: By failing to notify his clients of his
      suspensions   during   the  representation, and   his
      consequent inability to practice law while suspended,
      Attorney Davis violated SCR 22.26(1)(a).

      Count Eight: By failing to advance a civil claim on
      C.F.'s and/or NASGA's behalf or timely determine
      whether a potential civil claim had merit, and by
      failing to pursue the actions agreed to during the May

                                     7
                                                            No.   2019AP2405-D


     5, 2018 conference         call,    Attorney   Davis     violated
     SCR 20:1.3.10

     Count Nine: By failing to respond to his clients'
     requests for status updates following their May 5,
     2018 conference call or otherwise keep them informed
     as   to   case    status,   Attorney   Davis violated
     SCR 20:1.4(a)(3)11 and SCR 20:1.4(a)(4).12

     Count Ten: By failing to refund unearned fees upon
     termination of representation, Attorney Davis violated
     SCR 20:1.16(d).

     Count Eleven: By failing to respond to the OLR's May
     1, 2019 request for a response to P.A.R.'s grievance,
     Attorney Davis violated SCR 22.03(2), enforceable via
     SCR 20:8.4(h).
     ¶12    On August 18, 2020, Attorney Davis filed an amended

petition for consensual license revocation pursuant to Supreme

Court Rule (SCR) 22.19.13       In his amended petition Attorney Davis

     10SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
     11SCR 20:1.4(a)(3) provides:     "A lawyer shall keep                the
client reasonably informed about the status of the matter."
     12SCR 20:1.4(a)(4) provides: "A lawyer shall promptly
comply with reasonable requests by the client for information."
     13   SCR 22.19 provides:

          (1) An attorney who is the subject of an
     investigation   for   possible  misconduct   or   the
     respondent in a proceeding may file with the supreme
     court a petition for the revocation by consent or his
     or her license to practice law.

          (2) The petition shall state that the petitioner
     cannot successfully defend against the allegations of
     misconduct.

          (3) If a complaint has not been filed, the
     petition shall be filed in the supreme court and shall
     include the director's summary of the misconduct
     allegations being investigated.  Within 20 days after
                                     8
                                                                           No.    2019AP2405-D



discloses that in addition to the complaint before us now, the

OLR   is    also       investigating           two   additional        grievances      against

Attorney         Davis.         Attorney         Davis        admits    that      he   cannot

successfully defend against the allegations of this complaint or

the pending grievances.               He states that is aware of his right to

legal      counsel      but    he     is   freely,       voluntarily,       and    knowingly

giving      up    his     right     to     further     contest       the   allegations        of

misconduct        in    this    complaint        and     in    the   pending     grievances.

Attorney Davis further agrees that he should be ordered to make

restitution to three former clients in the amount of $7,500 to

NASGA,     $7,500       to    C.F.,      and    $4,000    to    P.A.R.,    relating      to    a

pending grievance.




      the date of filing of the petition, the director shall
      file in the supreme court a recommendation on the
      petition. Upon a showing of good cause, the supreme
      court may extend the time for filing a recommendation.

           (4) If a complaint has been filed, the petition
      shall be filed in the supreme court and served on the
      director and on the referee to whom the proceeding has
      been assigned. Within 20 days after the filing of the
      petition, the director shall file in the supreme court
      a response in support of or in opposition to the
      petition and serve a copy on the referee.       Upon a
      showing of good cause, the supreme court may extend
      the time for filing a response.     The referee shall
      file a report and recommendation on the petition in
      the supreme court within 30 days after receipt of the
      director's response.

           (5) The supreme court shall grant the petition
      and revoke the petitioner's license to practice law or
      deny the petition and remand the matter to the
      director or to the referee for further proceedings.

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                                                                             No.      2019AP2405-D



     ¶13     The       OLR     supports         Attorney          Davis'         petition       for

consensual license revocation.                       The OLR confirms that certain

grievances against Attorney Davis remain under investigation and

contends        that      Attorney        Davis           has     engaged        in      "serious

misconduct."        The OLR states:             "[d]avis misled his clients into

thinking     he     had    a    valid     law    license,          collected        fees,      then

abandoned them after intermittent work."

     ¶14     The       referee    determined,             based     on     the     disciplinary

complaint,        Attorney       Davis'     amended             petition    for       consensual

license revocation, and the OLR's response, that Attorney Davis

has engaged in serious misconduct, and he recommends that we

accept    the     petition,       order    restitution,             and     revoke       Attorney

Davis' license to practice law.                        No appeal has been filed in

this matter, so our review proceeds pursuant to SCR 22.17(2).

     ¶15     As the OLR stated, and the referee agreed, we have

accepted      SCR      22.19     consent        revocation          petitions          involving

similar      levels       of    misconduct           in     the     past.          See    In     re

Disciplinary        Proceedings         Against        Stubbins,         

2014 WI 115

,     

358 Wis. 2d 358

, 

854 N.W.2d 682

(granting petition where previously

undisciplined attorney faced 17 potential counts of misconduct

in   three      matters        including        lack       of     diligence,       failure      to

communicate, and where the attorney repeatedly lied to cover up

his lack of diligence); In re Disciplinary Proceedings Against

Whitnall, 

2003 WI 146

, 

267 Wis. 2d 28

, 

673 N.W.2d 674

(granting

petition where attorney faced six counts including failure to

act diligently for clients, failure to communicate with clients,
and failure to return their files).
                                                10
                                                                              No.        2019AP2405-D



      ¶16    The OLR alleged, and the referee agreed that, Attorney

Davis    "misled     his       clients     into      thinking        he    had      a    valid      law

license, collected fees, then abandoned them after intermittent

work.     The result was a lack of diligence, communication and

follow through similar to Stubbins and Whitnall."                                       Indeed, the

referee describes Attorney Davis as "an attorney who has lost

all interest, let alone diligence . . . in advocating for his

clients or protecting their interests."                          The referee added that

in addition to his failure to diligently and competently pursue

legal    matters     his       clients      entrusted          to     him    and         to    timely

communicate       relevant       information          to     them,    Attorney           Davis       has

also repeatedly shirked his obligations as a member of the bar.

      ¶17    We    agree       that   the       seriousness           of    Attorney           Davis'

misconduct      demonstrates          a    need       to     protect        the     public,          the

courts, and the legal system from repetition of this misconduct,

to    impress      upon        Attorney         Davis      the       seriousness              of    his

misconduct,        and    to     deter     other       attorneys          from      engaging         in

similar misconduct.             See In re Disciplinary Proceedings Against
Arthur,     

2005 WI 40

,    ¶78,      

279 Wis. 2d 583

,           

694 N.W.2d 910

.

Accordingly,        we     accept         the     referee's          findings            of        fact,

conclusions of law, and recommendation.                          We order Attorney Davis

to pay restitution in the amount of $7,500 to NASGA, $7,500 to

C.F., and $4,000 to P.A.R., we grant Attorney Davis' petition

for     revocation       by     consent,        and     we    revoke        Attorney           Davis'

Wisconsin law license effective the date of this order.

      ¶18    Finally, we direct Attorney Davis to pay the costs of
this proceeding, which are $1,497.67 as of October 8, 2020.
                                                11
                                                                             No.    2019AP2405-D



Attorney Davis has provided no reason for this court to deviate

from its usual practice of imposing full costs.                          SCR 22.24(1m).

     ¶19    IT    IS        ORDERED    that    the    petition         for     revocation       by

consent is granted and the license of Stanley Whitmore Davis to

practice law in Wisconsin is revoked, effective the date of this

order.

     ¶20    IT IS FURTHER ORDERED that to the extent he has not

already done so, Stanley Whitmore Davis shall comply with the

provisions of SCR 22.26 concerning the duties of a person whose

license to practice law in Wisconsin has been revoked.

     ¶21    IT IS FURTHER ORDERED that Stanley Whitmore Davis is

ordered to pay restitution in the amount of $7,500 to NASGA,

$7,500 to C.F., and $4,000 to P.A.R.

     ¶22    IT    IS        FURTHER    ORDERED       that    as    a    condition        of    any

future petition for reinstatement of his license to practice law

in Wisconsin, Stanley Whitmore Davis will be required to prove

that he has made restitution to or settled all claims of all

persons    injured           or     harmed     by     his        misconduct,         including
reimbursement          to     the     Wisconsin       Lawyers'          Fund       for    Client

Protection       for        all     payments    made        by    that       fund,       or,    if

restitution has not been made, Stanley Whitmore Davis will need

to   explain      his        failure     or      inability         to     do       so.         See

SCR 22.29(4m).

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

of this order, Stanley Whitmore Davis shall pay the Office of

Lawyer    Regulation          the     costs    of    this        proceeding,        which      are
$1,497.67 as of October 8, 2020.
                                               12
                                                               No.   2019AP2405-D



    ¶24    IT IS FURTHER ORDERED that the restitution specified

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

Lawyer Regulation.

    ¶25    IT    IS      FURTHER        ORDERED   that   the    administrative

suspension of Stanley Whitmore Davis' license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues, for

failure   to    file   Office      of    Lawyer   Regulation    trust   account

certification,     and     for     noncompliance    with   continuing     legal

education requirements, will remain in effect until each reason

for the administrative suspension has been rectified pursuant to

SCR 22.28(1).




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    No.   2019AP2405-D




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