Office of Lawyer Regulation v. Jeffery J. Drach

O
                                                                     2020 WI 94

                  SUPREME COURT              OF     WISCONSIN
CASE NO.:               2018AP237-D


COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Jeffery J. Drach, Attorney at Law:

                        Office of Lawyer Regulation,
                                   Complainant-Respondent-Cross
                        Appellant,
                             v.
                        Jeffery J. Drach,
                                   Respondent-Appellant- Cross
                        Respondent.

                              DISCIPLINARY PROCEEDINGS AGAINST DRACH

OPINION FILED:          December 23, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          October 26, 2020

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ANN WALSH BRADLEY, J., did not participate.

ATTORNEYS:
       For    the      respondent-appellant-cross-respondent,        there    were
briefs       filed     by   Dean   R.   Dietrich,   Alyson   D.   Dieckman,    and
Dietrich VanderWaal, S.C., Wausau. There was an oral argument by
Dean R. Dietrich.


       For the complainant-respondent-cross-appellant, there were
briefs filed by Brenda K. Sunby, William J. Weigel, and Office
of Lawyer Regulation, Madison. There was an oral argument by
William J. Weigel.
                                                                         2020 WI 94
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.   2018AP237-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Jeffery J. Drach, Attorney at Law:

Office of Lawyer Regulation,

             Complainant-Respondent-
                                                                       FILED
             Cross Appellant,
                                                                 DEC 23, 2020
      v.
                                                                    Sheila T. Reiff
                                                                 Clerk of Supreme Court
Jeffery J. Drach,

             Respondent-Appellant-
             Cross Respondent.




      ATTORNEY     disciplinary       proceeding.          Attorney         publicly

reprimanded.



      ¶1     PER CURIAM.     This disciplinary matter comes to the

court on Attorney Jeffery J. Drach's appeal and the Office of

Lawyer     Regulation's     (OLR)     cross-appeal        of     a     report      and

recommendation of Referee Robert E. Kinney.                    The referee based

his report in part on a stipulation between Attorney Drach and

the   OLR,   in   which    Attorney    Drach   admitted         four     counts      of
misconduct and agreed to make a $1,540 restitution payment to
                                                                                  No.      2018AP237-D



one of the two clients involved in this matter.                                       After holding

an    evidentiary      hearing          to    address          the     appropriate         level    of

discipline, the referee filed a report concluding that Attorney

Drach committed three of the four charged counts of misconduct,

and    recommending         a    public       reprimand.               The       referee      further

recommended that this court order Attorney Drach to pay the full

costs of this disciplinary proceeding, which are $26,449.93 as

of November 9, 2020, and pay restitution beyond the stipulated

amount;      specifically,         a    total           of    $2,744      to    the    two    clients

involved in this matter, plus interest.

       ¶2        Through    his    appeal,          Attorney           Drach      challenges       the

referee's recommended public reprimand; he claims his misconduct

merits only a private reprimand.                             Attorney Drach also asks the

court to reduce the amount of costs in this case by 50 percent.

Finally,         Attorney       Drach    argues              that    the       restitution       award

against      him    should       not     depart          from       the    stipulated         amount:

$1,540 to one of the clients involved this matter.

       ¶3        In its cross-appeal, the OLR argues that the referee
erred       in    recommending          the    dismissal             of    one        of   the   four

misconduct         charges.        The        OLR       further        argues      that      Attorney

Drach's misconduct merits a public reprimand and an award of

full costs, as the referee recommended.                               The OLR does not seek

restitution beyond the stipulated amount.

       ¶4        After reviewing this matter and considering Attorney

Drach's appeal and the OLR's cross-appeal, we agree, in part,

with the referee's recommendations.                                 We accept the referee's
factual findings based on the parties' stipulation.                                          We agree
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with the referee that one of the charged counts of misconduct

should be dismissed, but we reach this conclusion for reasons

different from those stated by the referee.         We agree with the

referee that Attorney Drach committed the remaining counts of

misconduct, and that this misconduct merits a public reprimand.

We hold that Attorney Drach should pay the full costs of this

matter, and we impose restitution in the stipulated amount of

$1,540.

    ¶5    The OLR initiated this disciplinary proceeding with

the filing of a three-count complaint in February 2018, which it

later amended in a four-count complaint in June 2018.          Attorney

Drach denied any professional misconduct in his answers to both

the original and amended complaints.

    ¶6    The case proceeded through discovery and was set for a

disciplinary hearing in April 2019.       About two weeks before the

scheduled hearing, Attorney Drach entered into a stipulation in

which he admitted all four misconduct charges.         He also agreed

to pay——and in fact later paid——$1,540 in restitution to one of
the aggrieved clients.

    ¶7    The    parties   requested,   and   the   referee   held,   an

evidentiary     hearing    regarding    the   appropriate     level   of

discipline.     Attorney Drach appeared as the only witness.          In

post-hearing briefing, the OLR asked for a public reprimand, and

Attorney Drach asked for a private reprimand.

    ¶8    In August 2019, the referee filed his report.               He

accepted the parties' stipulation, which set forth the following
underlying facts.
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       ¶9     Attorney Drach has practiced law in Wisconsin since

1975.       He operates Drach Elder Law Center LLC (hereafter, the

"Drach firm") in Wausau, WI.

       ¶10    Attorney Drach has a disciplinary history.                               In 2002,

he received a public reprimand for failing to consult with a

client as to the objectives of representation; failing to keep a

client reasonably informed about the status of a matter, to

promptly      comply          with    the    client's         reasonable        requests      for

information, and to explain a matter to the extent reasonably

necessary      to    permit          the    client      to    make     informed     decisions

regarding     the        representation;          and   representing        a    client      when

that    representation           conflicted           with    his      responsibilities        to

another client.            See Public Reprimand of Jeffery J. Drach, No.

2002-9       (electronic             copy    available            at   https://compendium.

wicourts.gov/app/raw/000962.html).                           In    2008,   Attorney        Drach

received a private reprimand for failing to adequately supervise

the    conduct      of    a    non-lawyer         employee,        which   in   turn    led    to

conduct by the non-lawyer employee that would have constituted
professional        incompetence            had    Attorney        Drach   engaged      in    the

conduct himself.              Private Reprimand No. 2008-26 (electronic copy

available                at            https://compendium.wicourts.gov/app/raw/

002152.html).

       ¶11    The instant case involves Attorney Drach's misconduct

in two client matters, described below.

                    Mr. and Mrs. P. and their adult son, R.

       ¶12    The first client matter at issue involved a family
comprised of an elderly couple, Mr. and Mrs. P., and their adult
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son, R.        R. had always lived with Mr. and Mrs. P.; he never

lived independently.         Mr. P.'s health was declining.

    ¶13        In 2011, Mr. and Mrs. P. entered into three flat fee

agreements with the Drach firm:

         a    "Life   Planning    Agreement,"      for   $975,    which       Mr.    and

          Mrs. P. paid in full in February 2011;

         an "Asset Preservation Planning Agreement," for $5,975,

          which Mr. and Mrs. P. paid in full in May 2011; and

         an    "Implementation      of       the   Asset     Preservation           Plan

          Agreement," for $2,275, which Mr. and Mrs. P. paid in

          full in May 2011.

    ¶14        In August 2011, the Drach firm sent Mr. and Mrs. P. an

itemized bill, labeled "Life Planning," for $975.                        There were

several problems with this bill.                First, Mr. and Mrs. P. had

already paid a flat fee for               "life planning"         services      (e.g.,

drafting powers of attorney and living wills).                  Second, although

the bill was labeled as concerning "Life Planning," the actual

itemized work on the bill did not concern life planning, but
rather related to transferring assets to a trust——an area of

work that was not covered by any of the engagement agreements

between Attorney Drach and Mr. and Mrs. P.                        Third, Attorney

Drach's and his staff member's hourly rates were not set forth

in the bill.           Mr. and Mrs. P. nevertheless paid the bill in

full.

    ¶15        In   June   2014,   the    couple's    adult    son,      R.,    called

Attorney Drach's firm with news that Mrs. P. was in rapidly
failing health.         This development forced revisions to the estate
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plan that Attorney Drach had prepared for Mr. and Mrs. P., which

was based on the assumption that Mr. P. would predecease Mrs. P.

Within a few days of R.'s phone call, Attorney Drach's staff

went    to    Mrs.    P.'s    hospice      bed    with    revised      estate    planning

documents.         But Mrs. P. had already lost consciousness, and she

died shortly thereafter.

       ¶16    In     the    months    following     Mrs.       P.'s   death,     Attorney

Drach      worked    on     asset    preservation        and   trust    administration

matters on Mr. P.'s behalf.                   Attorney Drach did not have a

written hourly fee agreement with Mr. and Mrs. P. for either

category      of    work.      During      this   time    period,      the    Drach   firm

issued bills to Mr. P. totaling $6,632.40 for asset preservation

work and $4,537.22 for trust administration work.

       ¶17    In November 2014, R., in his capacity as power of

attorney for his father, Mr. P., signed a flat fee agreement for

the Drach firm to help prepare a medical assistance application

for his father.             The Drach firm charged a flat fee of $6,500

plus out-of-pocket costs.                 The following month, the Drach firm
withdrew this amount from client funds held in trust.

       ¶18    Despite       having    a    flat   fee     agreement      in   place     for

medical assistance application work, the Drach firm sent Mr. P.

a   bill     in    March    2015    with   medical-assistance-related             billing

entries for eight dates in November and December 2014.                                These

entries, which totaled $1,540, appeared on a bill related to the

Drach firm's asset preservation work.

       ¶19    On November 12, 2014, the Drach firm obtained R.'s
permission by telephone to pay $11,169.62 for services rendered
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                                                                   No.    2018AP237-D



between June 24, 2014 and October 31, 2014.                       The Drach firm

withdrew this amount from client funds held in trust one day

later, on November 13, 2014.           The Drach firm did not provide the

required notice in writing five days in advance of the trust

fund withdrawal.       Nor did the Drach firm provide a written trust

account balance to R. in November 2014, when the legal bill was

paid.

    ¶20     On December 16, 2014, the Drach firm again called R.

to obtain permission to pay an additional $11,945 in legal fees

from the trust account.          The Drach firm explained in a December

18, 2014 letter that this $11,945 amount represented fees for

trust    administration       work,    asset    preservation      work,    and   the

$6,500    flat   fee    for     work   on      Mr.   P.'s   medical      assistance

application.      On December 23, 2014, the Drach firm withdrew

$11,945 from client funds held in trust.                        The firm did not

provide R. with an accurate accounting in writing of what was

being paid from the trust account, nor was he notified when the

funds would be withdrawn from trust.                 Of the fees listed in the
December 18, 2014 letter, $2,322 was for asset preservation work

that had not yet been done; the firm had estimated the amount of

fees needed to finish the asset preservation work by multiplying

the expected amount of time the Drach firm's attorneys and staff

planned to work on the file by his/her hourly rate.                          R. was

never informed that a portion of the bill was based on estimated

future fees.

    ¶21     As   a     result     of    these        actions,     Attorney    Drach
stipulated to the following counts of misconduct:
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                                                 No.   2018AP237-D


Count One:   By billing medical assistance application
work as hourly charges within asset preservation
billings   when  there   was  an   existing  flat  fee
agreement, Attorney Drach violated SCR 20:1.5(a).1

Count Two:   By charging an additional $975 for life
planning work when the work was actually for the
transferring of assets without disclosing to Mr. and
Mrs. P. the basis or rate of the hourly fees, by
failing to enter into a written fee agreement for
asset preservation work in 2014, and by failing to
enter into a written fee agreement for representation
relating to trust administration, in each instance,
Attorney Drach violated SCR 20:1.5(b)(l).2

1   SCR 20:1.5(a) provides:

     A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:

     (1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;

     (2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;

     (3) the fee customarily charged in the locality
for similar legal services;

       (4) the amount involved and the results obtained;

     (5) the time limitations imposed by the client or
by the circumstances;

     (6) the nature and length      of   the   professional
relationship with the client;

     (7) the experience, reputation, and ability         of
the lawyer or lawyers performing the services; and

       (8) whether the fee is fixed or contingent.
2   SCR 20:1.5(b)(l) provides:
                              8
                                                   No.   2018AP237-D


     Count Three:     By failing to provide R. with the
     anticipated date of withdrawal of funds from trust to
     pay fees in November and December 2014, by failing to
     provide a written trust account balance in November
     2014, by failing to provide an accurate written trust
     account balance in December 2014, and by estimating
     future non-contingent fees and withdrawing them from
     the trust account before they were earned in December
     2014, in each instance, Attorney Drach violated former
     SCR 20:1.15(g).3




          The scope of the representation and the basis or
     rate of the fee and expenses for which the client will
     be responsible shall be communicated to the client in
     writing, before or within a reasonable time after
     commencing the representation, except when the lawyer
     will charge a regularly represented client on the same
     basis or rate as in the past.     If it is reasonably
     foreseeable that the total cost of representation to
     the client, including attorney's fees, will be $1000
     or less, the communication may be oral or in writing.
     Any changes in the basis or rate of the fee or
     expenses shall also be communicated in writing to the
     client.
     3 Former SCR 20:1.15(g), effective through June 30, 2016,
provided:

          (1) Notice to client. At least 5 business days
     before the date on which a disbursement is made from a
     trust account for the purpose of paying fees, with the
     exception of contingent fees or fees paid pursuant to
     court order, the lawyer shall transmit to the client
     in writing all of the following:

          a. An itemized bill or other accounting showing
     the services rendered;

          b. Notice of the amount owed and the anticipated
     date of the withdrawal; and

           c. A statement of the balance of the client's
     funds    in  the  lawyer  trust  account after  the
     withdrawal.

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                                         G.L.

      ¶22    The second client matter at issue involved Attorney

Drach's representation of G.L.                 G.L. was an elderly woman with

two   adult       daughters,     J.T.     and     J.E.,       and    a     husband      with

Alzheimer's disease.           G.L.'s daughter, J.T., worked at the Drach

firm for two years, from January 2007 to February 2009, doing

typing and bookkeeping work.

      ¶23    In 2007, G.L. signed a flat fee agreement with the

Drach firm for Estate Planning/Life Planning, Asset Preservation

Planning,     and    Implementation       of    the     Asset    Preservation           Plan.

The flat fee was $12,000, plus out-of-pocket costs.                                Attorney

Drach completed the work encompassed in the flat fee agreement

in 2010.

      ¶24    In     November     2014,      G.L.'s      daughter,         J.T.,      became

gravely     ill.     J.T.   was     G.L.'s      power    of     attorney.          In   that

capacity,     J.T.    requested      that       Attorney      Drach       review     G.L.'s

existing documents to ensure that G.L.'s affairs were in order.

      ¶25    Attorney Drach met with J.T. at her home on November
10, 2014.      He did not have J.T. sign any agreement setting forth

the nature of the legal work that he was going to perform, nor

did he discuss with her whether the legal work would be done on

a flat fee or hourly basis.              J.T. passed away several days after

Attorney Drach met with her.

      ¶26    In February 2015, Attorney Drach sent G.L. a bill for

additional estate planning work in the amount of $7,659.                                  He

issued    this     bill   without    a    written       hourly      fee    agreement      in
place.      The bill did not itemize the time spent by each attorney
                                          10
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or staff member or show the hourly rates for Attorney Drach or

his staff.        Attorney Drach had never discussed with J.T. or G.L.

the fact that his and his staff's hourly rates had increased

since   he       had    last      done   trust       administration           work      on    G.L.'s

behalf several years earlier.

    ¶27      In        late    2014,     G.L.    retained         a    different        lawyer   to

represent her with respect to her estate planning and trust

administration             matters.       On    March       30,       2015,      Attorney      Drach

provided     G.L.'s         new    counsel      with    G.L.'s         $7,659      bill,      which,

again, did not include an hourly rate breakdown nor a detailed

itemization of the time spent by each attorney or staff member.

On April 24, 2015, pursuant to a request by G.L.'s new counsel,

Attorney     Drach            provided     counsel       with         a    detailed          billing

statement that included an itemization of work done on the file

and disclosed the current hourly rates for Attorney Drach and

his staff.

    ¶28      As        a      result     of     these       actions,          Attorney        Drach

stipulated to the following counts of misconduct:

    Count Four:   By doing legal work on G.L.'s file in
    2014 and 2015 for estate planning without a written
    fee agreement and by failing to communicate in writing
    any changes to the basis or rate of the hourly fees
    related to the trust administration legal work, in
    each     instance,     Attorney     Drach     violated
    SCR 20:1.5(b)(1).
    ¶29      As mentioned above, the referee filed his report after

holding      a     hearing         on    sanctions.               Despite         the    parties'

stipulation        to       all   four    counts       of    misconduct,           the       referee
recommended        dismissal        of   stipulated         Count         One,    which,      again,


                                                11
                                                                             No.    2018AP237-D



alleged that by billing Mr. and Mrs. P. for medical assistance

application        work    as    hourly       charges       within    asset    preservation

billings      when    there      was     an    existing       flat    fee    agreement     for

medical      assistance         application         work,     Attorney      Drach    violated

SCR 20:1.5(a) (forbidding lawyer from making an agreement for,

charging, or collecting "an unreasonable fee or an unreasonable

amount    for      expenses").           The    referee       reasoned      that,    although

Attorney Drach billed in excess of the amount set by the flat

fee agreement for medical assistance application work ($6,500),

there was no testimony or other evidence in the record to show

that the total amount actually billed (the $6,500 flat fee, plus

$1,540 in hourly billings, equaling $8,040) was an unreasonable

amount.       Thus, in the referee's view, there was no violation of

SCR 20:1.5(a).            "[F]or a violation of SCR 20:1.5(a) to lie, it

must be shown that the attorney fees charges were too high," the

referee wrote.           Without such a showing, Attorney Drach's billing

practices      could      only    be     a    breach    of    the    fee     agreement,    not

misconduct.
       ¶30    As    to    the    remaining          counts,    the    referee      determined

that    the     stipulated        facts       supported       legal    conclusions        that

Attorney Drach had engaged in the misconduct alleged in Counts

Two, Three, and Four.

       ¶31    Turning to the issue of appropriate discipline, the

referee found that Attorney Drach's overall course of conduct

featured more aggravating factors than mitigating factors.                                  On

the aggravating side, the referee noted that Attorney Drach's
prior    disciplinary           cases,       from    2002     and    2008,    are    somewhat
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remote     from      today,       but    much    less       remote       from     the    time   the

offenses at issue here were committed.                            Attorney Drach committed

multiple offenses.                 The victims were particularly vulnerable.

Attorney Drach had trouble seeing, or acknowledging, that what

he did was wrong, and he tended to blame his employees for his

ethical troubles.              His substantial experience in the law (more

than   40      years)        should      have    counseled          against       his     actions,

particularly           his        tendency       to     forego           written        engagement

agreements.          On the mitigating side, he cooperated with the OLR.

He also agreed to pay $1,540 in restitution to the P. family.

       ¶32     The referee          further recommended                  that Attorney         Drach

should     pay       full     costs,      as    well     as       restitution         beyond    the

stipulated        amount.          Specifically,            the    referee      recommended       a

restitution award of $2,744, comprised of the stipulated $1,540

to   R.,      plus    a     payment     to     G.L.    of    $1,204,       which      equals     the

difference between the amount Attorney Drach actually billed her

at his undisclosed higher rates and the amount he would have

billed her at the lower rates at which he had billed her years
earlier.         The referee further recommended that Attorney Drach

pay interest on these restitution amounts.

       ¶33     As mentioned above, both Attorney Drach and the OLR

have appealed from the referee's report.                                We turn first to the

arguments in Attorney Drach's appeal.

       ¶34     Attorney        Drach      argues       that        the     referee       correctly

recommended the dismissal of Count One, which, again, alleged

that     by    billing        Mr.       and     Mrs.    P.        for     medical       assistance
application          work    as    hourly      charges       within       asset     preservation
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                                                                   No.     2018AP237-D



billings   when   there    was    an   existing     flat   fee     agreement      for

medical    assistance     application    work,     Attorney      Drach      violated

SCR 20:1.5(a).         Although    Attorney       Drach    stipulated        to   the

misconduct alleged in Count One, he insists on appeal that the

facts underlying this count show no more than clerical errors,

and that in any event, there is no evidence to show that the

cumulative amount he charged for his services was unreasonable.

    ¶35     Attorney     Drach    does      not   challenge      the       referee's

determinations of misconduct on Counts Two, Three, and Four, but

he insists his misconduct should result in the imposition of a

private    reprimand——not     a    public     reprimand,      as     the     referee

recommended.      He argues that that his misconduct amounted to

nothing more than "technical" violations of our ethical rules,

complained about by "disgruntled family members."                        He claims

that his failures to enter into fee agreements with Mr. and Mrs.

P. and with G.L. were acts of "care and compassion" because it

would have been inappropriate to have conversations about fees

with R. while his mother was dying, or with G.L.'s power of
attorney, J.T., while J.T. was gravely ill.                Attorney Drach also

claims that that the referee failed to appropriately acknowledge

certain mitigating factors, namely:               (1) his cooperation with

the OLR; (2) the visible place he holds in the legal community;

and (3) the purported fact that, if he is publicly reprimanded,

he may be forced to resign certain professional designations or

positions.     As for his previous disciplinary problems, he claims

they are too old, and too distinguishable, to have relevance
here.
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      ¶36     Turning     to    restitution       and       costs,       Attorney      Drach

argues      that    the   referee    erred       in     recommending            restitution

payments that the OLR never sought.                   Attorney Drach also objects

to the imposition of full costs.                 He suggests that a reduction

in costs——50 percent, his counsel proposed at oral argument——

would be appropriate.             He claims that "at the time that OLR

initiated its investigation, it alleged that Attorney Drach had

engaged in far more serious and pervasive misconduct that what

was   ultimately      alleged."       According         to    Attorney      Drach,      this

extensive investigation, combined with the lengthy litigation

involved      in   this   case,     show   that       the     OLR    "has       pursued     an

unjustified        campaign     against     [him].            In    the     interest        of

fairness, the Court should adjust the costs to reflect a more

realistic prosecution of the case."

      ¶37     In its appellate briefing, the OLR argues that the

referee's recommendation of a public reprimand is appropriate

and supported by the evidence.                  As an initial matter, the OLR

disagrees     with    the      referee's   recommendation            that       this   court
should dismiss Count One.            It submits that the referee's belief

that the existence of an SCR 20:1.5(a) violation depends on the

reasonableness of the amount ultimately charged the client is

inconsistent with the language of the rule.                         The rule provides

that the amount of fees involved is simply one of the eight

factors set forth in the rule.              See SCR 20:1.5(a)(4).                 There is

no language in the rule that states that the entire fee must be

found    to   be   unreasonable      in    order      to     make    a    finding      of   an
SCR 20:1.5(a) rule violation.
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       ¶38    The OLR also argues that Attorney Drach's insistence

that   it    would    have     been      improper      to     discuss         fees     with      his

clients at or near the time of a family member's serious illness

or death displays a disregard of the ethical rule requiring

written fee agreements.                 The OLR points out that many lawyers

regularly deal with families in crisis, especially in personal

injury,      wrongful       death,      and    probate-type            cases,       and    yet     a

written communication about what a lawyer is going to charge a

client in this situation is mandated by the ethical rules.                                       The

OLR further notes that in situations where raising the topic of

fees   may    come    across       as    insensitive,         the       rules       allow     some

flexibility, as the communication in writing can be "before or

within a reasonable time after commencing the representation."

SCR 20:1.5(b)(1).

       ¶39    The    OLR    also     argues     that    Attorney         Drach's       previous

disciplinary        matters    are      pertinent      here.            His     2008      private

reprimand, for example, was based on his general failure to

supervise his office staff in the execution of estate planning
documents.          The    instant      case    reveals       a    similar          pattern       of

misconduct; i.e., a failure to put protocols in place to ensure

that matters are being properly handled within his office.

       ¶40    Turning to the issue of restitution and costs, the OLR

does   not    seek        restitution      beyond      the     stipulated            amount       of

$1,540.       The OLR insists, however, that costs should not be

reduced.       The     OLR    reports         that   while        it    is    true        that    it

investigated        matters     and      charges       that       were       ultimately          not
pursued in the disciplinary complaint, it did not include any
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costs attributable to time spent by investigators in the costs

reported in this case.          Moreover, the OLR notes, Attorney Drach

stipulated to all four of the misconduct counts alleged by the

OLR.    Attorney Drach failed to explain how or why the OLR acted

inappropriately in pursing this matter.

       ¶41   The matter is now before this court to review the

referee's report and recommendation, informed by the parties'

arguments     made    in   their    briefs      and   at   oral    argument.        When

reviewing a referee's report and recommendation, we affirm the

referee's findings of fact unless they are clearly erroneous,

but we review the referee's conclusions of law on a de novo

basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI

126,   ¶5,    305    Wis. 2d 71,     740     N.W.2d 125.          We   determine    the

appropriate level of discipline to impose given the particular

facts of each case, independent of the referee's recommendation,

but benefiting from it.             In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶42   Guided by these standards, we conclude that Attorney
Drach committed the rule violations alleged by the OLR in Counts

Two, Three, and Four——just as the OLR complaint alleged, the

parties      stipulated,      and    the     referee       determined.         By   his

undisputed failure to enter into written fee agreements with his

clients,     his    failure   to    communicate       to    G.L.   in    writing    the

changes to his firm's hourly rates, and his failure to provide

Mr. and Mrs. P.'s adult son, R., with timely notices of the

withdrawal of funds from trust and an accurate accounting of


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trust fund balances, Attorney Drach violated SCR 20:1.5(b)(1)

and SCR 20:1.15(g).

       ¶43    We agree with the referee that Attorney Drach did not

commit the misconduct alleged in Count One, but for different

reasons from those expressed by the referee.                       We disagree with

the referee's conclusion that it is ethically permissible for a

lawyer who has agreed to a flat fee to demand that the client

make payments beyond that amount for legal work within the scope

of the agreement, so long as the total amount billed is not

shown to be excessively high.            Clients enter flat fee agreements

with    the    expectation       that   the     flat       fee     is    a    reasonable

calculation of all of the work to be done.                       We decline to hold

that SCR 20:1.5(a), which mandates reasonable fees, permits a

lawyer to unilaterally switch from a flat fee agreement to a

flat-fee-plus-hourly-fee          arrangement        for    work    covered      by   the

flat fee agreement.         Billing a client using such an unagreed-to

and    inherently        contradictory        fee     structure         hardly     seems

"reasonable" for purposes of SCR 20:1.5(a), regardless of the
total amount billed.

       ¶44    We   are    persuaded,     however,          by     Attorney       Drach's

argument that he did not engage in this kind of inappropriate

billing      practice    here.     Rather,      it     appears      undisputed        that

Attorney Drach's clerical staff mistakenly entered, on a single

bill in an hourly billing matter, time entries for eight dates

concerning work that should have been billed as part of a flat

fee billing agreement.           When asked at the sanctions hearing in


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this matter why he did not correct these errors while reviewing

the bill, Attorney Drach testified:

    [W]hat I usually review for is typos and grammar. I
    review for appropriate descriptions in the narrative.
    This was done at a time when we were scrambling to
    make sure that [Mr. P.] got eligible [for Medicaid].
    So I think I reviewed this, but . . . I obviously
    didn't pick up on the fact that there were some
    medical assistance entries there.
Attorney Drach agreed to reimburse the P. family for the amounts

billed in the mistaken time entries (a total of $1,540), and he

has, in fact, done so.

    ¶45    On    these    particular        facts,     we   do    not     find     an

SCR 20:1.5(a)     violation.         While        an   attorney's        fee     must

unquestionably    be     reasonable,      we   decline      to   hold    that    the

issuance of a single bill containing some inadvertently included

time entries rises to the level of misconduct contemplated by

SCR 20:1.5(a).

    ¶46    We are left, then, with determining the appropriate

sanction for the misconduct alleged in Counts Two, Three, and

Four.    In making this determination, we reject Attorney Drach's

insistence that     this court should view             his failure to enter

written fee agreements with his clients as an act of compassion,

not misconduct.     As explained above, Attorney Drach argues that

he was loathe to discuss fee arrangements with his clients in

times of illness or recent family loss.                That is not a winning

excuse for a lawyer's failure to get written fee agreements in

place——especially      for   an   elder     law    lawyer    such   as    Attorney
Drach.    Illness, death, and the family turmoil associated with


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                                                                               No.    2018AP237-D



these events are integral parts of Attorney Drach's practice.

They    do   not    give    him      an      excuse     to       bypass     explicit      ethical

requirements.         To the contrary, the distressing circumstances in

which    his    clients         often      find   themselves           make    it    only    more

important that Attorney Drach have clear, written fee agreements

in place——as did not happen here.

       ¶47     We   note,       too,      that    this          is   the    third    time     that

Attorney Drach has been the subject of a disciplinary action.

Given    that       he     has       already      been          privately      and       publicly

reprimanded, one could argue that the next logical step is a

suspension.           See       In      re    Disciplinary            Proceedings          Against

Gorokhovsky, 2013 WI 100, ¶26, 351 Wis. 2d 408, 840 N.W.2d 126

("Now that we already have privately and publicly reprimanded

Attorney       Gorokhovsky,          imposing         yet       another      reprimand       would

unduly depreciate the seriousness of his misconduct and the need

to deter him from continued unprofessional behavior.")                                      But a

suspension seems too harsh; while Attorney Drach has engaged in

unprofessional billing practices, there is no evidence of deceit
or any course of conduct designed to collect fees for work not

performed.

       ¶48     A public reprimand, however, fits comfortably within

our case law.            See, e.g., Public Reprimand of James T. Runyon,

No.          2017-5             (electronic                 copy            available           at

https://compendium.wicourts.gov/app/raw/002958.html)                                     (imposing

public   reprimand         on    previously           disciplined          lawyer    for,    among

other    things,      failing         to     provide        a    client      with    a    written
communication explaining the representation's scope or required
                                                 20
                                                                           No.     2018AP237-D



fee information, failing to notify the client before removing

fees from his trust account, failing to communicate his fee in

writing, and withdrawing an advanced fee before it was earned);

see    also   Public     Reprimand        of    Jerry       T.    Delcore,        No.    2017-2

(electronic     copy     available        at    https://compendium.wicourts.gov/

app/raw/002929.html)           (imposing        public      reprimand        on   previously

disciplined lawyer for providing a client with inconsistent and

confusing information regarding the rate and basis of her fees,

and    for    failing     to     provide        the     client      with      notices        and

accountings required under former SCR 20:1.15(b)(4m)(a) and (b)

for advanced fee payments).

       ¶49    Although Attorney Drach claims that a public reprimand

will   hurt    his   standing        in   the       elder   law    community,           we   have

previously made clear that a possible detrimental impact on an

attorney's ability to practice is not an appropriate factor in

establishing     a   level      of    discipline.           See    In   re    Disciplinary

Proceedings Against Lamb, 2011 WI 101, ¶31, 338 Wis. 2d 1, 806

N.W.2d 439.
       ¶50    Finally,    the     court         must     consider       the       issues      of

restitution and costs.               At oral argument, the OLR made clear

that it does not now, and did not previously, seek restitution

beyond the amount that Attorney Drach has already paid ($1,540).

We accede to the OLR's judgment on this issue.

       ¶51    As to costs, we reject Attorney Drach's request for a

50 percent      reduction       in awardable costs as undeveloped.                            In

proceedings before the referee, Attorney Drach objected to the
OLR's requested costs in a conclusory fashion, and did not state
                                               21
                                                                  No.    2018AP237-D



what he considered to be a reasonable amount of costs.                          See

SCR 22.24(2).4      His request for a 50 percent reduction came only

at oral argument, unsupported by any explanation as to why this

figure is reasonable beyond a claim that the OLR engaged in

overbroad litigation against him——a perplexing argument given

his   stipulation    to   all   of   the    counts   that   the    OLR    charged.

Under SCR 22.24(1m), the court's general policy is that upon a

      4   SCR 22.24(2) provides:

           In seeking the assessment of costs by the supreme
      court, the director shall file in the court, with a
      copy to the referee and the respondent, a statement of
      costs within 20 days after the filing of the referee's
      report or a SCR 22.12 or 22.34(10) stipulation,
      together with a recommendation regarding the costs to
      be assessed against the respondent.    If an appeal of
      the referee's report is filed or the supreme court
      orders briefs to be filed in response to the referee's
      report,   a  supplemental   statement   of  costs  and
      recommendation regarding the assessment of costs shall
      be filed within 20 days of the date of oral argument
      or, if no oral argument is held, the filing date of
      the last brief on appeal.    The recommendation should
      explain why the particular amount of costs is being
      sought.   The respondent may file an objection to the
      statement of costs and recommendation within 21 days
      after service of the statement of costs. A respondent
      who objects to a statement of costs must explain, with
      specificity, the reasons for the objection and must
      state what he or she considers to be a reasonable
      amount of costs.    The objection may include relevant
      supporting documentation.      The office of lawyer
      regulation may reply within 11 days of receiving the
      objection. In proceeding before a referee the referee
      shall make a recommendation to the court regarding
      costs.   The referee should explain the recommendation
      addressing the factors set forth in SCR 22.24 (lm).
      The referee shall consider the submissions of the
      parties and the record in the proceeding. No further
      discovery or hearing is authorized.

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finding of misconduct it is appropriate to impose all costs upon

the   respondent.     The       court     may,      in   the    exercise       of    its

discretion,      reduce    the    amount       of    costs,     but     we    find   no

justification in this case for                 a deviation from the court's

general policy.

      ¶52   IT   IS   ORDERED      that    Jeffery       J.    Drach    is     publicly

reprimanded for his professional misconduct.

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

of this order, Jeffery J. Drach shall pay to the Office of

Lawyer   Regulation       the    costs    of     this    proceeding,         which   are

$26,449.93 as of November 9, 2020.

      ¶54   IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this decision.

      ¶55   ANN WALSH BRADLEY, J., did not participate.




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    No.   2018AP237-D




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