ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.
¶ 1 Attorney Vladimir M. Gorokhovsky has appealed from the referee's findings of fact and conclusions of law entered after a public hearing following the filing of the Office of Lawyer Regulation's (OLR) complaint on October 15, 2010. The OLR alleged, and the referee concluded, that Attorney Gorokhovsky had committed the following eight acts of professional misconduct:
¶ 2 The referee appointed to this matter, Attorney Christine Harris Taylor, determined that Attorney Gorokhovsky had committed the misconduct alleged in all eight counts. The referee recommended that Attorney Gorokhovsky be publicly reprimanded and ordered to pay the costs of this proceeding, which totaled $14,396.78 as of August 1, 2012.
¶ 4 Attorney Gorokhovsky was licensed to practice law in Wisconsin in 2002 and practices in Glendale, Wisconsin. In 2009 Attorney Gorokhovsky was privately reprimanded for: (1) charging an unreasonable fee; (2) trust account violations; (3) failing to refund to his clients any portion of an advance fee; and (4) failing to provide accurate information to the OLR during an investigation.
¶ 5 The eight counts in this disciplinary proceeding concern Attorney Gorokhovsky's representation of F.B. We provide the following summary of Attorney Gorokhovsky's course of conduct, drawn from the facts alleged by the OLR and found by the referee.
¶ 6 F.B. faced multiple criminal charges, including the false imprisonment and battery of his former girlfriend, D.B. After D.B. failed to appear as a witness at trial, the State dismissed the false imprisonment and battery charges, but pressed forward on misdemeanor and felony bail jumping charges arising from F.B.'s contact with D.B. in violation of certain no-contact orders.
¶ 7 A jury convicted F.B. on the bail jumping charges. The circuit court sentenced F.B. to jail and prison terms with extended supervision. His sentences collectively carried several conditions, including an order that F.B. have no contact with D.B. without court approval during the period of extended supervision.
¶ 8 Despite the fact that F.B. never authorized Attorney Gorokhovsky to discuss his case with D.B. or anyone else, D.B. and Attorney Gorokhovsky repeatedly discussed F.B.'s case. Over the course of several months, D.B. paid Attorney Gorokhovsky over $2,000 in legal fees to prepare and file a postconviction motion for sentence modification on F.B.'s behalf.
¶ 9 Before filing the sentence modification motion, Attorney Gorokhovsky wrote F.B. to say that he had been retained by D.B. and that he intended to file a motion for sentence modification. F.B. wrote back stating that he disagreed with this approach, that D.B. had falsely accused him of criminal behavior, and that he wanted to challenge his conviction on various grounds, including ineffective assistance of trial counsel. Attorney Gorokhovsky responded with a letter stating that D.B. had retained him to file a sentence modification motion, and that challenging F.B.'s convictions as F.B. proposed would cost more than D.B. could afford and would be unlikely to succeed. Attorney Gorokhovsky rendered this opinion about the likelihood of success of a challenge to F.B.'s convictions without obtaining and reviewing trial transcripts, or reviewing a videotape that had been an important piece of evidence at trial, or speaking with F.B.
¶ 10 Attorney Gorokhovsky filed the sentence modification motion despite the fact that F.B. had not authorized him to do so. The circuit court denied the motion.
¶ 11 Attorney Gorokhovsky billed over $8,000 in attorney fees to pursue the postconviction motion that F.B. had never authorized. He billed over $1,800 in attorney fees prior to communicating with F.B. in any fashion. He billed approximately $400 for phone calls with D.B. regarding "billing issues" or other attempts to collect his legal fees. He submitted various duplicative and excessive charges.
¶ 13 Following a two-and-one-half-day hearing, the referee determined that the OLR had proven misconduct in all eight counts charged. As for sanctions, the referee recommended that Attorney Gorokhovsky should be publicly reprimanded and should be assessed the entire costs of the disciplinary proceeding, which total $14,396.78 as of August 1, 2012. The OLR did not request, and the referee did not recommend, any restitution award.
¶ 14 Attorney Gorokhovsky appeals. He challenges the referee's findings as incomplete and challenges each of the referee's conclusions of misconduct as incorrect. He also appeals from the referee's recommendation that he should be publicly reprimanded and ordered to pay the full costs of this disciplinary proceeding. We consider Attorney Gorokhovsky's arguments in turn.
¶ 15 Attorney Gorokhovsky first argues that the referee's findings of fact are incomplete in that the referee did not make findings summarizing the testimony that a certain witness gave at the disciplinary hearing. Attorney Gorokhovsky appears to argue that the testimony of this witness was highly relevant in that it purportedly supported his decision to pursue a sentence modification motion without F.B.'s consent and justified his lack of communication with F.B.
¶ 16 The referee obviously disagreed with this argument and we do also. Nothing in this witness's testimony at the disciplinary hearing legitimizes Attorney Gorokhovsky's decision to pursue a litigation strategy contrary to his client's express wishes, with little in the way of lawyer-client communication. The referee's failure to make findings of fact summarizing the particular testimony at issue was harmless.
¶ 17 Attorney Gorokhovsky next argues that the referee incorrectly granted a motion in limine filed by the OLR on the first morning of the disciplinary hearing. The motion sought to exclude evidence of supposed off-the-record, in-chambers statements made by a circuit court judge — whom Attorney Gorokhovsky did not name as a disciplinary hearing witness — during F.B.'s criminal proceedings.
¶ 18 We reject this argument. Although Attorney Gorokhovsky criticizes the motion in limine as having been filed untimely, he does not identify any specific deadline set by the referee for motions in limine, nor does he satisfactorily demonstrate any prejudice from the timing of the motion. Any prejudice to Attorney Gorokhovsky from the granting of the motion in limine was self-inflicted by his failure to arrange for his desired witness's presence at the disciplinary hearing. Moreover, Attorney Gorokhovsky does not argue that the referee's grant of the motion in limine on hearsay grounds was substantively incorrect.
¶ 19 Attorney Gorokhovsky next argues that his representation of F.B. was proven to be competent by virtue of the fact that a different lawyer, an assistant state public defender, eventually filed a motion making the ineffective assistance claim that D.B. had wanted Attorney Gorokhovsky to pursue, and the circuit court denied this motion.
¶ 20 We reject this argument. Simply because F.B.'s preferred litigation strategy did not succeed does not mean that Attorney Gorokhovsky acted with the legal knowledge, skill, thoroughness, and preparation reasonably necessary to provide competent representation. By rendering
¶ 21 Attorney Gorokhovsky next attempts to persuade us that F.B. was to blame for the lack of lawyer-client communication, and that additional such communication was unnecessary given his familiarity with F.B.'s case.
¶ 22 We reject this argument. Attorney Gorokhovsky's argument does not alter the established facts that: (1) Attorney Gorokhovsky never consulted with F.B. before filing the sentence modification motion, and (2) Attorney Gorokhovsky never sought to withdraw the motion after learning of F.B.'s disapproval of the motion. By any measure, these are troublesome failures in lawyer-client communication.
¶ 23 Attorney Gorokhovsky next claims that his acceptance of compensation for legal services from D.B. — a non-client — did not constitute misconduct because he reasonably assumed that F.B. had authorized him to receive compensation from D.B., and because there was no proof that this payment arrangement interfered with his professional judgment.
¶ 24 We reject this argument. The record shows that Attorney Gorokhovsky never obtained F.B.'s consent after consultation regarding the payment arrangement with D.B., as our rules require. The record further shows that Attorney Gorokhovsky declined to perform certain work on F.B.'s behalf because D.B. was having difficulty paying for Attorney Gorokhovsky's legal services. These facts demonstrate the inappropriateness of the payment arrangement.
¶ 25 Attorney Gorokhovsky next attempts to persuade us that his discussions with D.B. about F.B.'s case without F.B.'s consent, and his decision to follow D.B.'s strategic instructions rather than F.B.'s strategic instructions, did not amount to misconduct. Attorney Gorokhovsky claims that he reasonably assumed that F.B. wanted D.B. to oversee his case.
¶ 26 We reject this argument as unsupported by the record. The established facts show that Attorney Gorokhovsky was careless with his client's confidences and instructions, and such conduct is clearly unethical.
¶ 27 Attorney Gorokhovsky next takes issue with the referee's determinations that he had back-dated one of his letters to F.B. to make it appear as though he had sent F.B. certain case materials on an earlier date, and that he had misled the OLR by submitting a copy of this back-dated letter to the OLR during the course of its investigation. Attorney Gorokhovsky claims that his actions were not willfully misleading.
¶ 28 We reject this argument. The referee's determinations are fact-intensive and involve an implicit evaluation of Attorney Gorokhovsky's credibility. Because Attorney Gorokhovsky has not shown that the referee's findings with regard to the letter in question were clearly erroneous, we affirm the conclusion of misconduct on this count.
¶ 29 Finally, Attorney Gorokhovsky challenges the referee's conclusion that he charged an unreasonable fee by, among other things, charging over $8,000 in attorney fees to pursue a postconviction motion that had not been authorized by F.B., submitting various duplicative and excessive charges, and charging approximately $400 in fees for pursuing his fees. He claims that his fees were authorized by a representation agreement that D.B. never signed, and that there was no proof that his charges were unreasonable.
¶ 31 In sum, after our review of the record in this matter, we conclude that the referee's findings of fact are not clearly erroneous. We agree with the referee's legal conclusion that Attorney Gorokhovsky's conduct as alleged in Counts 1 through 8 of the complaint amounted to violations of the Rules of Professional Conduct for Attorneys. We therefore adopt the referee's findings of fact and conclusions of law.
¶ 32 We appreciate that we may not have addressed each and every one of the arguments presented by Attorney Gorokhovsky challenging the referee's findings and conclusions. To the extent we have not, such arguments are deemed denied. See Libertarian Party of Wisconsin v. Wisconsin, 199 Wis.2d 790, 801, 546 N.W.2d 424 (1996) (appellate court need not discuss arguments unless they have "sufficient merit to warrant individual attention").
¶ 33 Turning to the question of the appropriate discipline, the OLR requested, and the referee recommended, that a public reprimand be issued as discipline for Attorney Gorokhovsky's misconduct. Attorney Gorokhovsky argues that a public reprimand is excessive discipline in view of the facts of this matter. He explains that whatever errors he may have committed were caused by an overzealous, good faith desire to help F.B. for which he should not be unduly punished. He also claims that his conduct should be excused as a necessary part of his learning curve as a lawyer. He argues that a private reprimand would be an appropriate sanction.
¶ 34 We disagree. Attorney Gorokhovsky has been licensed for a decade and has been privately disciplined once before. The ethical rules that Attorney Gorokhovsky violated are not difficult ones to grasp, and his violations of those rules were obvious. He ought to have known better. Under the circumstances, a public reprimand is a modest sanction. We also remind Attorney Gorokhovsky that the court may impose progressively severe sanctions when an attorney engages in a pattern of misconduct.
¶ 35 Finally, there is the matter of restitution and costs. As to restitution, we note that there appears to be a disconnect between the OLR's disinterest in pursing restitution (it seeks none) and its charging decision. In Count 4 the OLR alleged, the referee concluded, and this court has agreed that Attorney Gorokhovsky committed professional misconduct by accepting compensation for legal services from someone other than his client without obtaining the client's prior consent, in violation of former SCR 20:1.8(f)(1). Thus, it is a legal fact that every penny Attorney Gorokhovsky received from D.B. was ethically misbegotten. It would seem that a lawyer whose collection of fees is itself a violation of the ethics code should be made to disgorge those fees through a restitution award. However, because restitution has not been sought nor briefed, this court will not address the subject further.
¶ 36 As to costs, Attorney Gorokhovsky requests an undefined reduction in the amount of costs awardable to the OLR, which total $14,396.78 as of August 1, 2012. Attorney Gorokhovsky challenges the OLR's costs on several grounds. He
¶ 37 We believe that these claims are not sufficiently unique or compelling as to constitute the sort of extraordinary circumstances necessary to relieve Attorney Gorokhovsky from having to pay the full costs of this matter. See SCR 22.24(1m) (supreme court's general policy upon a finding of misconduct is to impose all costs upon the respondent attorney). Attorney Gorokhovsky's allegations of financial hardship are an appropriate consideration for establishment of a payment plan with the OLR; assigning greater significance to them at this point would be premature.
¶ 38 IT IS ORDERED that Vladimir M. Gorokhovsky is publicly reprimanded for his professional misconduct.
¶ 39 IT IS FURTHER ORDERED that within 60 days of the date of this order, Vladimir M. Gorokhovsky shall pay to the Office of Lawyer Regulation the costs of this proceeding.
¶ 40 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 order.