ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.
PER CURIAM.
¶ 1 Attorney Joseph W. Weigel appeals Referee Christine Harris Taylor's report and recommendation that his license to practice law in Wisconsin be suspended, and that he should pay the costs of the disciplinary proceeding. Attorney Weigel argues that the referee erroneously concluded he committed the misconduct alleged in the OLR's complaint.
¶ 2 On review, we accept the referee's factual findings and her conclusions with respect to the first two counts alleged in the disciplinary complaint. We dismiss the third count and we have concluded that a public reprimand is sufficient discipline for Attorney Weigel's misconduct. Attorney Weigel shall pay the costs of this proceeding.
¶ 3 Attorney Weigel was admitted to practice law in Wisconsin in 1960. He is a personal injury attorney practicing in Milwaukee. He was previously disciplined by private reprimand on January 26, 1979, for failing to promptly notify a client of the adverse result in her damages action against an opposing party and insurance company.
¶ 4 The background giving rise to this proceeding stems from the contentious dissolution of a Milwaukee law firm. The Office of Lawyer Regulation (OLR) filed a complaint against Attorney Weigel on June 21, 2010. The complaint alleged that Attorney Weigel had: (1) entered into an impermissible non-competition agreement contrary to former SCR 20:5.6(a);
¶ 5 On March 17, 2011, the referee issued a report containing extensive factual findings and concluding that the OLR had proven its case with respect to all three counts. The referee recommended a 60-day suspension and imposition of costs. Attorney Weigel appealed.
¶ 6 A referee's findings of fact will not be set aside 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. This court is free to impose whatever discipline it deems appropriate, 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.
¶ 7 Some background is necessary to assess the first two charges against Attorney Weigel. In 1975 Attorney Alvin Eisenberg, already an experienced lawyer, organized the law firm of Alvin H. Eisenberg, S.C., as a service corporation. Attorney Eisenberg was the sole shareholder.
¶ 8 In 1990 six attorneys, including Attorney Weigel, acquired shares in the Eisenberg firm. On March 1, 1999, Attorney Weigel became the president of the firm, which was known during the relevant period as Eisenberg, Weigel, Carlson, Blau & Clemens, S.C.
¶ 9 On March 11, 1999, Attorney Weigel, on behalf of the firm, entered into a Stock Redemption Agreement by which the firm redeemed all of Attorney Eisenberg's shares of stock. As a condition of the redemption, the firm agreed to employ Attorney Eisenberg under an Employment Agreement on a month-to-month basis, with the right to terminate his employment on 30 days' written notice.
¶ 10 The Employment Agreement stated Attorney Eisenberg was entitled to employee benefits "customarily received by other attorneys employed by Employer," including malpractice insurance, bar association dues, and payment for professional seminars. It also required the firm to provide facilities, equipment, supplies, and personnel necessary for Attorney Eisenberg's performance of his "professional duties."
¶ 11 The covenant at issue, in paragraph 11 of the Employment Agreement, states:
¶ 12 In January 2005 the Firm, without giving prior notice to Attorney Eisenberg, moved its law office to a new location. A letter was left for Attorney Eisenberg saying there was no office space for him at the new location, that he should go home, and that his paychecks would be sent to him.
¶ 13 For months after the firm moved, it caused a truck with a sign mounted on both sides to be parked on a public street near the old office. The sign on the truck indicated the firm had moved and provided the new address.
¶ 14 On January 31, 2005, the firm sent a letter to clients saying that the office had moved and stated that "everything remained the same" including the "same attorneys" and phone number.
¶ 15 On February 8, 2005, Attorney Eisenberg's counsel delivered a letter to Attorney
¶ 16 Enclosed with the February 8, 2005 letter was a letter to Attorney Weigel from Attorney Eisenberg stating:
¶ 17 On February 9, 2005, Attorney Weigel executed and arranged for the Firm's counsel to deliver a proposed agreement to Attorney Eisenberg. The proposed agreement made explicit reference to the covenant against competition in the Employment Agreement.
¶ 18 On February 10, 2005, Attorney Eisenberg's counsel delivered a letter to the Firm's counsel stating, among other things, that:
¶ 19 Attorney Eisenberg's counsel sent letters on February 11, 2005, and February 14, 2005, continuing to protest the firm using Attorney Eisenberg's name and asking the firm to cease and desist using "Eisenberg" in the firm's name.
¶ 20 By letter dated February 16, 2005, the Firm's counsel asserted that under the Employment Agreement "the present ownership has the right to use the Eisenberg name until the 30 days has expired." The firm asserted that if Eisenberg's resignation letter of February 8, 2005, was assumed to provide such notice, the 30 days would expire on March 10, 2005, and at such time "the present ownership would be legally required to cease using the name Alvin H. Eisenberg."
¶ 21 By letters dated February 17, 2005, and February 28, 2005, Attorney Eisenberg's counsel renewed his objections to the firm's continued use of the Eisenberg name.
¶ 22 After the move to the new office and until March 2005, the firm continued to display in the client waiting area a framed photo of former Green Bay Packer football player Reggie White which contained the handwritten statement:
¶ 23 On March 3, 2005, the firm, still using the Eisenberg name, entered into an agreement with a lawyer named Donald S. Eisenberg. At the time, Donald Eisenberg was engaged in an "of counsel" relationship
¶ 24 The firm then affixed a name plate stating "Mr. Eisenberg" on an office door at the new office.
¶ 25 Sometime after March 3, 2005, Attorney Weigel signed a letter for the firm and mailed it to certain clients. The letter stated:
¶ 26 In March 2005 and for some time thereafter, the firm ran television advertisements referring to the move of its office location and stating that:
¶ 27 On March 14, 2005, Attorney Weigel filed a grievance against Alvin Eisenberg, asserting that Attorney Eisenberg was contacting clients of the firm in violation of the supreme court rules. The grievance referred to the restrictive covenant in the Employment Agreement.
¶ 28 On April 7, 2005, Attorney Eisenberg filed suit in Milwaukee County Circuit Court against the firm and its shareholders, including Attorney Weigel, asserting claims for breach of contract, unfair competition, contract interference, statutory false advertising, and theft. The firm filed a counterclaim seeking to enforce the restrictive covenant against Attorney Eisenberg.
¶ 29 In subsequent correspondence with the OLR, Attorney Weigel took the position that Attorney Eisenberg was retired and maintained that the firm was justified in continuing to use the name Eisenberg as part of the firm's name.
¶ 30 The first count of the OLR complaint alleges that by executing an agreement with a "non-compete" clause,
¶ 31 Attorney Weigel acknowledges that the Stock Redemption Agreement "restricts the rights of a lawyer to practice after termination of the relationship." However, Attorney Weigel argues that the clause does not violate SCR 20:5.6(a) because it was an agreement "concerning benefits upon retirement." Attorney Weigel argues that "[e]ven though the Stock Redemption Agreement states that Eisenberg is to be employed as an attorney, that was not the intent of the parties to the contract and they clearly did not follow it." Attorney Weigel points to various aspects of Attorney Eisenberg's testimony where Attorney Eisenberg described himself or was described as having "retired." Attorney Weigel adds that the clause was added at Attorney Eisenberg's request and contends that this is a purely contractual dispute, citing SCR 20:1.17.
¶ 32 The referee rejected Attorney Weigel's arguments finding that the Stock Redemption Agreement does not refer or conform to SCR 20:1.17. The Agreement does not use the word "retire" and it did not provide that Attorney Eisenberg would cease to practice law. Indeed, the referee found, and the record supports the finding, that Attorney Eisenberg continued to meet with clients and continued to serve as the face of the firm in the same manner as before the agreements were executed.
¶ 33 We accept the referee's findings of fact and her conclusion that the non-competition clause in the Employment Agreement violated SCR 20:5.6(a). We agree that while Attorney Eisenberg may have wanted, for some purposes, to portray himself as retired or semi-retired, that does not turn the Employment Agreement into a "retirement agreement."
¶ 34 Attorney Weigel has challenged the referee's finding that he was motivated by greed in entering into the non-compete agreement, emphasizing that the provision was inserted at the insistence of Attorney Eisenberg's attorney. However, as the referee found, Attorney Weigel aggressively sought to enforce the non-compete clause against Attorney Eisenberg. We accept the referee's findings, and we agree that the execution of and efforts to enforce the non-compete clause violated SCR 20:5.6(a).
¶ 35 The second count of the OLR complaint alleged that Attorney Weigel misled clients and the public by continuing to use the firm name "Eisenberg, Weigel, Carlson, Blau & Clemens, S.C." contrary to SCRs 20:7.1(a)(1), 20:7.5(a), and 20:8.4(c).
¶ 36 Supreme court rule 20:7.1(a)(1) provided:
¶ 37 Supreme court rule 20:7.5(a)
¶ 38 Supreme court rule 20:8.4(c) provided that it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit or misrepresentation."
¶ 39 The crux of this claim is that despite the abrupt termination of Attorney Eisenberg's relationship with the firm and his repeated demand that the firm cease using his name, Attorney Weigel implied to clients and the public that Attorney Alvin Eisenberg was still associated with the firm, as evidenced by, among other things, advertising that the "same lawyers" were with the firm, advertising that "everything remained the same," continuing to display Alvin Eisenberg's memorabilia in the new office, and affixing the nameplate "Mr. Eisenberg" on an office door.
¶ 40 Attorney Weigel asserts that the firm "was free to employ Donald S. Eisenberg." That is not the issue. The issue is the firm using the "of counsel" relationship with Donald Eisenberg as a pretext for continuing to use the name "Eisenberg" as the lead name for a law firm founded by Alvin Eisenberg after the abrupt and contentious termination of Alvin Eisenberg's relationship with the firm. Attorney Weigel continued to use "Eisenberg" in the firm name after March 10, 2005, the date he concedes Alvin Eisenberg was no longer an employee of the firm.
¶ 41 The referee found, and we agree, that when faced with losing the name of the firm's founding member, Attorney Weigel entered into an agreement with another Mr. Eisenberg, Donald Eisenberg, to have a pretext for continuing to use Eisenberg in the firm's name. Donald had no prior relationship with the firm and was not an employee, much less a shareholder, of the firm. This, coupled with advertising telling the public that "nothing had changed" was misleading, and we agree with the referee's conclusion that this conduct violated the aforementioned rules of professional conduct.
¶ 42 The third count of the OLR complaint involves the payment of certain bonuses to a paralegal. The paralegal has been employed by the firm since approximately 1990 and works in the personal injury practice as part of a group of lawyers and nonlawyer assistants referred to as the "Weigel Team." She provides services at the file preparation and settlement stages of cases. Attorney Weigel supervises the Weigel Team.
¶ 43 Some of the nonlawyer personnel employed by the firm, including this paralegal, are compensated on an "incentive" or "bonus" system. The paralegal is compensated for her services as follows: She is paid a base hourly wage ($7.00 or $7.50 per hour) plus overtime pay for work in excess of 40 hours per week and on weekends, as mandated by the Fair Labor Standards Act.
¶ 44 In addition to her base pay, the paralegal receives two forms of bonus: (1) thirty cents per thousand dollars (three-tenths of one percent) of the gross recoveries from personal injury cases she worked on; and (2) a quarterly bonus consisting of $1,500 plus $250 per thousand (25 percent) of the difference between a weekly average (computed quarterly, over 13 weeks) of gross recoveries from personal
¶ 45 The OLR contends that this bonus arrangement constitutes unlawful fee splitting in violation of SCR 20:5.4(a)(3), which provided that a lawyer or law firm shall not share legal fees with a nonlawyer, except that "a lawyer or law firm may include nonlawyer employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement."
¶ 46 Supreme court rule 20:5.4 is based on the American Bar Association's Model Rule 5.4 which "clearly prohibits fee `splitting' with paralegals." See ABA Model Guidelines for the Utilization of Paralegal Services (2004). The underlying purpose of the fee-splitting rule is to guard the professional independence of a lawyer.
¶ 47 As a practical matter, of course, a law firm's profits result almost entirely from legal fees. So, in a sense, even paying nonlawyer employees a salary could, technically, be viewed as a sharing of fees, because fees are the firm's source of revenue. See, e.g., Ethics Opinion 322 (D.C. Bar, Feb. 16, 2004).
¶ 48 However, it is well settled that a lawyer may compensate a nonlawyer assistant based on the quantity and quality of their work and the value of that work to the law practice. Thus, in addition to regular compensation, paralegals and legal assistants routinely and properly receive discretionary merit-based bonuses or bonuses based on the overall success of the firm. See, e.g., State Bar of Georgia Formal Advisory Opinion No. 05-4. The ethical issues arise when the nonlawyer's compensation is tied too directly to specific clients, cases or work performed by the nonlawyer such that the professional independence of the lawyer is compromised.
¶ 49 Attorney Weigel argues this bonus arrangement is permissible, asserting that it "is tied to the total performance of the firm in obtaining gross recoveries for all clients" and that it is "not based upon specific fees from specific cases." Attorney Weigel notes the OLR failed to show that any specific client was affected by this system.
¶ 50 A Wisconsin case directly addressing the "fee splitting" aspect of SCR 20:5.4 is In re Disciplinary Proceedings Against Van Cura, 178 Wis.2d 612, 504 N.W.2d 610 (1993). There, we ruled that it was impermissible for a law firm to enter into an agreement whereby a consulting firm would finance a law firm's product liability litigation in return for half of the fees the law firm collected from any products liability litigation. This case is factually distinguishable and provides minimal guidance to practitioners regarding whether this particular bonus system is permissible.
¶ 51 A review of ethics decisions from other jurisdictions indicates that "the line between the prohibited sharing of legal fees with a nonlawyer and a permissible compensation plan based on profit-sharing
¶ 52 Generally, bonuses are deemed permissible where the bonus is not tied to fees generated from a particular case or class of cases from a specific client. See, e.g., Philadelphia Bar Ass'n Prof. Guidance Comm., Op. 2001-7 (July 2001); Va. St. Bar Standing Comm. of Legal Ethics, Op. 885 (Mar. 11, 1987) (a nonlawyer may be paid based on the percentage of profits from all fees collected by the lawyer).
¶ 53 By contrast, a Florida ethics committee concluded that "[b]onuses to non-lawyer employees cannot be calculated as a percentage of the firm's fees or of the gross recovery in cases on which the non-lawyer worked." See Florida Ethics Opinion 89-4 (emphasis supplied); see also Matter of Struthers, 179 Ariz. 216, 877 P.2d 789 (1994) (an agreement to give to nonlawyer all fees resulting from nonlawyer's debt collection activities constitutes improper fee splitting); Florida Bar v. Shapiro, 413 So.2d 1184 (Fla.1982) (payment of contingent salary to nonlawyer based on total amount of fees generated is improper); State Bar of Montana, Op. 95-0411 (1995) (lawyer paid on contingency basis for debt collection cannot share that fee with a nonlawyer collection agency that worked with lawyer).
¶ 54 The OLR contends the bonus arrangement in this case is problematic in several respects. It involves the splitting of revenues and the OLR contends "that it has nothing to do with profits such that it does not fall within the profit-sharing safe harbor." The OLR notes the paralegal is entitled to a bonus if she meets certain goals — whether or not the firm was profitable — and that the payment to the nonlawyer, although computed on the basis of a client's gross recovery, comes out of the contingent fee earned by the firm.
¶ 55 We do not perceive a material ethical distinction between profit-sharing and revenue-sharing for purposes of this bonus calculation. The ethical considerations are the same.
¶ 56 The potential ethical concern here stems from the fact that the employee's bonus is based upon net profits of a specific law practice area, rather than upon the net profits of the law firm's entire practice.
¶ 57 To determine whether this bonus system runs afoul of SCR 20:5.4 we consider the original intent of rule, which is to protect a lawyer's exercise of independent professional judgment. Arguably, a paralegal always has some interest in maximizing the lawyer's fee income because the paralegal indirectly receives compensation generated from attorney's fees which are, themselves, generated by recoveries by clients. In that respect, however, the paralegal is no different than every nonlawyer employee of every law firm whose income is principally derived from contingent fee recoveries.
¶ 59 We turn to the appropriate discipline for Attorney Weigel's misconduct. The referee recommended a 60-day suspension based on her findings and conclusion that the OLR had proved all three of the counts alleged in the disciplinary complaint. She noted this case included certain aggravating factors such as multiple violations, Attorney Weigel's substantial experience in the practice of law, and Attorney Weigel's refusal to acknowledge wrongdoing. The referee, quite properly, did not consider the prior discipline because it was remote in time. Upon our independent review of the record and the specific facts of this case, we are persuaded that a public reprimand is sufficient to achieve the goals of attorney discipline. Although we are persuaded a suspension is not necessary to protect the public and the judicial system in this instance, Attorney Weigel is admonished that a public reprimand should not be interpreted as indicating this court is untroubled by his misconduct. We conclude further that Attorney Weigel should be required to pay the full costs of this disciplinary proceeding, which are $17,447.28 as of January 20, 2012. No restitution was sought and none is ordered in this proceeding.
¶ 60 IT IS ORDERED that Joseph W. Weigel is publicly reprimanded for his professional misconduct.
¶ 61 IT IS FURTHER ORDERED that within 60 days of the date of this order, Joseph W. Weigel shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and Joseph W. Weigel has not entered into a payment plan approved by the Office of Lawyer Regulation, then the Office of Lawyer Regulation is authorized to move this court for a suspension of the license of Joseph W. Weigel to practice law in Wisconsin.
¶ 62 ANN WALSH BRADLEY, J. (dissenting).
Today the majority interprets SCR 20:5.4(a) to allow fee splitting on particular cases with nonlawyer employees. Because I believe that this interpretation is contrary to both the purpose of the rule and to the interpretation of similar or identical fee-splitting rules enacted in other states, I respectfully dissent.
¶ 63 The court is asked to review three counts of alleged misconduct. In regard to the first two counts set forth in the complaint, the majority accepts the recommendation of the referee and concludes that Attorney Weigel should be disciplined. I agree.
¶ 64 However, the majority further concludes that the third count, involving the bonus structure used to compensate certain nonlawyer employees, should be dismissed. It determines that the compensation scheme used in this case does not violate the fee-splitting rule, SCR 20:5.4(a). It is here that I part ways with the majority.
¶ 66 The underlying purpose of the rule is to guard the professional independence of the lawyer. As the majority correctly notes, "ethical issues arise when the nonlawyer's compensation is tied too directly to ... work performed by the nonlawyer such that the professional independence of the lawyer is compromised." Majority op., ¶ 48. A person entitled to a portion of a lawyer's fees may attempt to influence the lawyer's activities so as to maximize those fees. Restatement (Third) of The Law Governing Lawyers § 10 cmt. b (2000).
¶ 67 A review of ethics opinions from other states with a similar or identical fee-splitting rule indicates that the rule permits certain bonuses to nonlawyer employees. For instance, the State Bar of Georgia determined that lawyers may pay a monthly bonus to nonlawyer employees based on the overall success of the firm. See State Bar of Georgia Formal Advisory Op. 05-4 (2007). Another ethics committee determined that a law firm could compensate a nonlawyer based on a percentage of the firm's net profits of a specific law practice area. See Michigan Ethics Op. RI-143 (1992).
¶ 68 However, "compensating nonlawyer employees based on a percentage of the legal fees generated in the particular matters on which the nonlawyer worked has been held impermissible." Restatement (Third) of The Law Governing Lawyers § 10 cmt. e. See, e.g. Utah State Ethics Advisory Op. Comm., Op. 02-07 (2002) (lawyers or law firms may not compensate nonlawyers with bonuses that are "tied to specific fees from a particular case"); Philadelphia Bar Ass'n Prof. Guidance Comm., Op. 2001-7 (2001) (bonus is permissible "provided that the bonus is not tied to or contingent on the payment of a fee from a particular case or specific class of cases"); North Carolina State Bar, Op. RPC 147 (1993) (nonlawyer bonus impermissible because it was "calculated based upon a percentage of the income the firm derives from legal matters on which the paralegal has worked").
¶ 69 The majority reflects that in addition to her base pay, the paralegal at issue received "thirty cents per thousand dollars (three-tenths of one percent
¶ 70 The OLR contends that this bonus arrangement constitutes unlawful fee splitting under SCR 20:5.4. It explains:
¶ 71 In its argument, the OLR emphasizes that the payment to the nonlawyer, although computed on the basis of a client's gross recovery, comes out of the contingent fee earned by the firm. It
¶ 72 I find the argument of the OLR persuasive. It is consistent with the conclusions of the other jurisdictions referenced above which have interpreted similar or identical rules based on the ABA model code. Therefore, I determine that a formula, as used here, that compensates nonlawyer employees based on a percentage of the legal fees generated in the particular matters on which the nonlawyer worked, violates both the purpose and the plain prohibition set forth in SCR 20:5.4. Accordingly, although I join the majority in finding violations as to counts 1 and 2, I respectfully dissent as to the dismissal of the third count.
¶ 73 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON joins this dissent.
Former SCR 20:5.6(a) provided that a lawyer shall not participate in offering or making "a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement;...."
Attorney Weigel mentioned the motion to reopen the record in his Statement of the Case, but did not develop his argument. Accordingly, we accept the referee's recommendation and we deny Attorney Weigel's motion to reopen the record.
