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Submitted 6-08 by Judge Jason Hanson, Circuit Court, Madison, WI

Lack of Competence; Failure to Communicate
Violations of SCR 20:1.1 and 20:1.4(b)
A man hired an attorney to represent him in three pending Racine County cases resulting from his arrest for first-offense operating while intoxicated (a civil offense) and his refusal to consent to a breathalyzer/blood test. At the time of his arrest, the man held a commercial driver's license (CDL) and made his living driving trucks. The attorney understood that the client's primary objective with regard to the pending charges was to retain his CDL or obtain an occupational permit on his CDL so that he could continue to earn his living.

After the client was arrested but before he entered into a plea agreement on the pending charges, a federal law change went into effect disqualifying drivers convicted of OWI from obtaining an occupational permit on a CDL for one year. The attorney was fully aware of the law change and its effective date but mistakenly believed that it would not apply because the client's arrest had been before the effective date.

By failing to thoroughly prepare and to accurately research and analyze the law relevant to the client's case, resulting in misadvising the client that he would be eligible to obtain an occupational CDL, the attorney violated SCR 20:1.1, which states, "A lawyer shall provide competent representation to a client," defined as requiring the "legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."

By: 1) failing to explain to the client the possibility and procedures for reopening his case after he was denied an occupational CDL; 2) failing to explain to the client before his plea that there had been a change in the law relevant to occupational CDLs and that the attorney had not confirmed the client would be eligible for an occupational CDL; 3) failing to discuss with the client that the attorney was having difficulty coming up with a solution for the client's ineligibility for an occupational CDL; and 4) failing to promptly inform the client that the attorney had been advised by the court that there were no other steps available to cause the client to obtain an occupational CDL, and so that in each instance the client could make informed decisions regarding the representation, the attorney violated SCR 20:1.4(b), which states, "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

The attorney had no prior discipline.