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staff reporter The wisconsin supreme Court has upheld the public reprimand of a divorce attorney for giving the police information about his client, who was then convicted of murdering his wife. In a 4-3 ruling, the court also upheld an $11,439 fine levied against James Paul O’Neil, a Green Bay, Wis., solo practitioner, by the the Office of Lawyer Relations for breaching attorney-client privilege. OLR v. O’Neil, No. 02-1029-D. On May 11, 1999, Erik Gracia hired O’Neil to represent him in his bid to divorce his wife, Colleen. Before O’Neil could file the papers, she was found dead. An autopsy determined her death was a homicide by asphyxiation. Gracia told O’Neil of his wife’s death and asked that O’Neil refund his retainer fee. Shortly after Colleen Gracia’s death, the Green Bay Police Department approached O’Neil for assistance with their investigation. At around the same time, Gracia discussed with O’Neil his possible need for representation in a criminal manner. Not realizing the nature of Gracia’s request, O’Neil agreed to turn over Gracia’s entire file to police investigators without asking his client’s permission or asserting lawyer-client privilege, according to the high court’s opinion. O’Neil was subpoenaed for the information. He also agreed to note any further conversations that he might have with Gracia. Dates of contact O’Neil also allowed the police to talk with his secretary about the times and dates that she had contact with Gracia. Gracia was eventually convicted of first-degree intentional homicide and is serving a life term. The Office of Lawyer Relations received a complaint from Gracia saying that the prosecution used financial information from his file to establish a motive for the crime. When deciding whether to pursue Gracia’s complaint, Bill Weigel, litigation counsel for the office, said, “the duty to protect attorney-client privilege is of paramount importance and to claim that he was unaware of it is inexcusable.” O’Neil said in a hearing with a referee for the office that he was unaware that he violated attorney-client privilege. He claimed at the same time, however, that he thought he would be helping his client by turning over the file, because it showed that Gracia wanted an uncontested divorce, thereby eliminating a possible motive for murdering his wife, the court said. Weigel said that the Office of Lawyer Relations sought a 60-day suspension of O’Neil’s license, the minimum period. Because the prosecutor’s office agreed not to use Gracia’s file in its case, however, the court found that Gracia’s life sentence was not based on the information that O’Neil provided. The court found that, “the referee also concluded there was no need to protect the public from Attorney O’Neil since he has indicated he now understands SCR 20:1.6 [dealing with attorney-client privilege] and has said he will conduct his practice accordingly.” But the court called O’Neil’s disclosure of information about his representation of Gracia without his consent “a serious failing.” George Kuhlman, ethics counsel for the American Bar Association, declined to comment on the specific case but did note generally that “there is a division between ethics and punishment. Mitigating factors can play a role in determining an appropriate punishment.” Kevin Milliken of Madison, Wis.’s Hurley, Burish & Milliken, who represented O’Neil, was unavailable for comment. Lauchheimer’s e-mail address is [email protected].

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