Sunday, May 29, 2011

Crime and Courts: Attorney Michael Hupy goes down swinging

Call it a tale of two attorneys, one a felon, the other in hot water for overzealously pointing out the crime to potential clients for whom they were both vying.

If you've ever been injured in an automobile accident, you'll recognize the name of Michael Hupy. Indeed, in all likelihood you've gotten a packet of advertising material in the mail. When I got smacked by a car, the envelope from Hupy & Abraham was the first to arrive.

When it comes to advertising, Hupy plays hardball. And according to a state Supreme Court decision issued on Friday, he went too far.

The allegations against Hupy stem from a relentless competitive spirit combined with deep animosity toward his former law partner, Charles Hausmann.

Hupy had worked for Hausmann's law firm, Hausmann-McNally, for 13 years before the two had a bitter falling-out in 1989. In 2002 Hausmann pleaded guilty to a federal charge of interstate and mail fraud in connection with a kickback scheme in which Hausmann referred clients to Milwaukee chiropractor Scott Rise, who then paid off Hausmann with a portion of the clients' negotiated settlement fees, essentially taking money out of the clients' pockets.

Hupy and Hausmann were locked in an advertising battle, competing through the U.S. mail for the business of car accident victims, and Hausmann's conviction was an obvious disadvantage. Hupy had taken to including scathing details of Hausmann's misdeeds in his brochures.

One of those was titled: "Read Mail from Lawyers Cautiously," which Hupy sent to thousands of prospective clients in 2003, warning that another personal injury attorney, whom he didn't name, was convicted for defrauding his clients, but was still practicing while his case was being appealed. That was all true -- in 2003. But Hupy sent out a brochure with the same article in 2006, well after the appeal had been settled, after Hausmann had served a federal prison term and after his license was suspended.

Hence, the statement was untrue, and a referee with the Office of Lawyer Regulation charged Hupy with violating the rules that govern attorney conduct.

Hupy, being a trial attorney, argued the matter in the shameless but effective manner lawyers often do.

And he argued that since he didn't name Hausmann, he can't be held responsible if people made that connection -- even though he admitted to the court that, yes, he was referring to Hausmann.

He argued that despite all evidence to the contrary, Hausmann was still practicing law in 2006, even while his license was suspended. That is, he was still a stockholder and a company officer in a company that practiced law, his name was connected to the firm on an Internet site, and he appeared on the company's annual report, so what's the difference?

Hupy also made the argument -- and many would say he has a point -- that the article was essentially a criticism of a lawyer regulation system that allowed Hausmann to practice law after he was convicted of a felony, and that fact was as true in 2006 as it was in 2003.

Hupy also held that the failure to update the information was merely an oversight, and anyway, the mailings were merely part of his campaign to educate the public about unscrupulous attorneys, so the speech was protected by the First Amendment.

The court didn't buy it. It noted the referee's contention that it was an advertisement, motivated by profit, and First Amendment protections do not protect commercial speech that is false. Moreover, it was sent out with other literature designed to win clients. At the very least, in the words of the referee, it was "a reckless disregard of the truth."

The court agreed, and on Friday issued Hupy a public reprimand. The justices also ordered him to pay $35,000 to cover the cost of the investigation and proceedings against him. They had originally charged him $45,916, but Hupy nickel-and-dimed them down.

Then there were the two ethics charges that Hupy beat.

One stemmed from a brochure entitled: "Beware: You will probably get a letter from a law firm whose senior partner went to prison on November 28, 2003."

The brochure warned prospective clients about Hausmann's conviction, and in the same paragraph included the statement: "Lawyers can mail letters and advertise on television without ever having tried a personal injury case."

A referee with the Office of Lawyer Regulation determined that the mailing conveyed the false impression that the Hausmann-McNally firm had never tried a personal injury case. The referee called the ad "dishonest, deceitful and misleading," and determined that it violated attorney conduct rules.

Not so, Hupy said. He was just making a general warning to the public. It wasn't about anyone specifically.

And he convinced three of the six justices hearing the case -- conservative Justice Michael Gableman didn't participate -- that he committed no ethical violation, a split right down the infamous liberal-conservative divide, with the conservatives on his side.

A third count against Hupy involved his use of a sticker on his firm's letterhead in 2004 celebrating the firm's 35th anniversary, which would mean he established the business in 1969. But that was the year the firm Hupy eventually bought out was founded, and it had gone through several permutations and name changes both before and after Hupy went to work there. So Hupy was essentially dating the law firm, which didn't become Hupy & Associates until 2004 (it became Hupy & Abraham in 2006), to 28 years before he actually bought it, and three years before he even graduated from law school.

The court, after determining that the law firm was operated continuously since its incorporation, even if under various names, eventually settled on 1974 as a founding date. And rather than quibble over five years, the justices dropped the matter.

Just for the record, I'm a bit torn. I find it heartening that the justices chose to discipline Hupy -- one conservative, Annette Ziegler, wanted to let him off scot free -- for engaging in egregious misconduct that, in the words of the court, "not only harmed the other lawyer, but more importantly harmed the public, indeed, it harmed a portion of the public that may very well have been looking for legal representation at the time it received the brochure article."

But you have to wonder, would I want an attorney who admitted his wrongs, took his punishment and atoned for his sins? Or would I want someone who, like Huby, disputes all allegations, no matter how damning, and cuts the best possible deal?

You might not like what he did, but you have to admit, he's got cojones.

By Steven Elbow, The Capital Times,



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