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In re Disciplinary Proceedings Against Miller10/25/2005
ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.
We review the findings of fact, conclusions of law and recommendation of referee Judith Sperling-Newton recommending that Attorney Gary A. Miller be publicly reprimanded for failing to disburse funds being held in his trust account after the trial court had ordered the funds to be granted to his client's ex-wife in a divorce property settlement.
We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law, and we agree that the appropriate discipline for the misconduct is a public reprimand. In addition, we conclude that the costs of the proceeding, which are $5486.86, as of July 21, 2005, should be assessed against Attorney Miller.
Attorney Miller was admitted to practice law in Wisconsin in 1970 and practices in Madison. In 1995 he received a private reprimand for misconduct consisting of misrepresenting he had an attorney's lien as security for his fee in a personal injury matter and failing to promptly deliver his client's file materials to successor counsel.
In August 2004 the Office of Lawyer Regulation (OLR) filed a complaint alleging three counts of misconduct involving two clients. After conducting discovery the OLR withdrew one of the counts. The remaining two counts of the complaint involved Attorney Miller's representation of D.E. in a divorce action filed by D.E.'s wife, J.E. Attorney Miller spends about half of his professional time on family law-related matters and has handled between 500 and 700 divorce cases, 100 to 150 of which were contested.
At the time D.E. retained Attorney Miller, D.E. was represented by another lawyer in a personal injury case. D.E. signed a written retainer agreement with Attorney Miller indicating that Attorney Miller would have a lien on the proceeds of any settlement coming out of the personal injury action for payment of his attorney's fees.
On October 29, 1999, D.E.'s personal injury attorney forwarded $24,000, representing the settlement in the personal injury case, to Attorney Miller. The check was made payable to both D.E. and J.E. Upon receipt of the check, Attorney Miller notified J.E.'s attorney, Walter Stewart, and requested that J.E. sign a release. Attorney Miller informed Attorney Stewart that he would deposit the check into his trust account and that the parties would attempt to resolve all of the remaining issues in the divorce matter. Both D.E. and J.E. endorsed the check and Attorney Miller deposited it into his trust account on December 1, 1999. At the time Attorney Miller gave notice to Attorney Stewart and deposited the funds into his trust account, a temporary order was in effect in the divorce action.
A trial of the divorce case was scheduled for July 18, 2000, before Judge Gerald Nichol. Prior to trial the parties tried, but were unable, to resolve three issues: (1) how the marital property should be divided; (2) how the substantial marital debts should be allocated; and (3) whether J.E. was entitled to any money from the $24,000 personal injury settlement. At the trial, Judge Nichol found there was a loss of taxable income to D.E. and J.E. as a result of the personal injury and that J.E. was entitled to $7329 of the personal injury settlement. The court made the following statement to Attorney Miller:
So, I'm saying she [J.E.] gets what's in [Stewart's] trust account, he gets what's in the tax refund of 3,600 totally his, whatever the difference, which is like $114, if you're going equally divide them, I'm applying toward attorneys fees and then I'm awarding out of your
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