Matter of Discipliniary Proceedings Against Gamino
314 Wis. 2d 544, 2008 WI 107, 753 N.W.2d 521 (2008)
Rule of Law:
An attorney engages in professional misconduct by representing clients with conflicting interests without informed written consent, failing to provide competent representation through inadequate inquiry, failing to keep clients reasonably informed, continuing representation of a former client's adversary in a substantially related matter, and failing to return a client's file upon termination of representation.
Facts:
- On or about April 20, 2004, Attorney Carlos A. Gamiño met with N.B. and E.B. to discuss finalizing their divorce action, which had been pending for about seven months.
- E.B. suggested they find one attorney to represent both parties to save money, and Attorney Gamiño agreed, sending separate stipulations for substitution of counsel but failing to obtain written consent for dual representation or file the stipulations with the court.
- The divorce case was dismissed for failure to prosecute on July 6, 2004, after Attorney Gamiño's office unsuccessfully sought an adjournment of the scheduled June 22, 2004 trial and neither party appeared on the dismissal calendar; Attorney Gamiño did not inform N.B. of the dismissal.
- On February 3, 2005, at the final divorce hearing, Attorney Gamiño informed the court he was representing E.B. and N.B. was appearing pro se, which was the first N.B. learned she was not being represented by him.
- Attorney Gamiño prepared the joint financial disclosure statement and marital settlement agreement, but these documents contained problems disadvantageous to N.B., such as unlisted retirement account values and unmentioned monies N.B. was due.
- After the divorce, Attorney Gamiño failed to comply with N.B.'s post-divorce attorney's request for a copy of her file, stating that E.B. had not authorized him to release the documents.
- Attorney Gamiño failed to make adequate inquiry into E.B.'s retirement assets, N.B.'s health condition, her disability status, or her history of domestic violence by E.B.
Procedural Posture:
- The Office of Lawyer Regulation (OLR) filed a complaint on October 6, 2006, alleging seven counts of professional misconduct against Attorney Carlos A. Gamiño.
- A referee, Dennis J. Flynn, was appointed to hear the matter and conducted an evidentiary hearing.
- The referee concluded that Attorney Gamiño committed five of the seven alleged counts of misconduct and exonerated him on the remaining two.
- The referee recommended that Attorney Gamiño's license to practice law be suspended for 18 months, that he complete 24 continuing legal education credits approved for ethics, and pay the costs of the disciplinary proceeding.
- Neither Attorney Gamiño nor the OLR appealed the referee's recommendation.
- The matter was submitted to the Wisconsin Supreme Court for review pursuant to SCR 22.17(2).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an attorney's conduct in a divorce proceeding, involving dual representation without written consent, failure to adequately investigate financial and personal circumstances, inadequate communication, and refusal to surrender a client's file, constitute multiple violations of the Rules of Professional Conduct, warranting disciplinary action?
Opinions:
Majority - PER CURIAM
Yes, Attorney Carlos A. Gamiño's conduct constituted multiple violations of the Rules of Professional Conduct, meriting disciplinary action. The court affirmed the referee's findings that Attorney Gamiño committed professional misconduct by violating SCR 20:1.7(a) (conflict of interest), SCR 20:1.4 (failure to keep client reasonably informed), SCR 20:1.1 (failure to provide competent representation), SCR 20:1.9(a) (representing an adverse party to a former client), and SCR 20:1.16(d) (failure to surrender client's file). The court reasoned that Attorney Gamiño knowingly undertook dual representation of N.B. and E.B. in a divorce, a matter inherently involving adverse interests, without obtaining their written consent, a non-waivable conflict in this context. He failed to inform N.B. that he would cease representing her until the final hearing, and did not adequately communicate about critical case developments like the dismissal and motion to reopen. Furthermore, his representation was incompetent as he failed to investigate essential financial information (E.B.'s retirement assets) and N.B.'s personal circumstances (health, disability, domestic violence), which were crucial for ensuring an equitable division of marital property and maintenance. By representing E.B. after having represented N.B. in the same matter, with materially adverse interests and critical knowledge of N.B.'s situation, Attorney Gamiño violated his duty to a former client, especially given the 'patently unfair' settlement. Finally, his refusal to provide N.B.'s file to her new attorney upon request violated his obligations upon termination of representation. The court found these findings to be supported by clear, satisfactory, and convincing evidence, particularly discrediting Attorney Gamiño's testimony in favor of N.B.'s and expert witnesses'. Given Gamiño's troubling prior disciplinary history (though for conduct occurring around the same time), an 18-month suspension, 24 ethics CLE credits, and costs were deemed appropriate.
Analysis:
This case underscores the paramount importance of an attorney's ethical duties, particularly regarding conflicts of interest and competent representation in family law matters. It reinforces that dual representation in a contested divorce is rarely permissible and, if attempted, requires strict adherence to informed written consent, which often is impossible due to inherent adversities. The ruling emphasizes an attorney's affirmative duty to thoroughly investigate client circumstances, even when clients claim to have reached agreements, to ensure fairness and prevent significant disadvantages to one party. For future cases, it serves as a strong reminder that even 'oversights based on ignorance' are not excuses for failing to meet fundamental standards of competence and communication, and previous disciplinary history can influence the severity of sanctions for current misconduct.
