Board of Bar Examiners v. B. R. C. , 353 Wis. 2d 435 ( 2014 )

2014 WI 23
SUPREME COURT OF WISCONSIN
CASE NO.: 2012XX605-BA
COMPLETE TITLE: In the matter of the conditional admission of B.
R. C.
Board of Bar Examiners,
Complainant-Respondent-Appellant,
v.
B. R. C.,
Respondent-Petitioner-Respondent.
BAR ADMISSION OF B.R.C.
OPINION FILED: May 9, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: ABRAHAMSON, C.J., did not participate.
ATTORNEYS:
2014 WI 23
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012XX605-BA
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the conditional admission of
B.R.C.
Board of Bar Examiners, FILED
Complainant-Respondent-Appellant,
MAY 9, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
B.R.C.,
Respondent-Petitioner-Respondent.
ATTORNEY reinstatement proceeding. Attorney's conditional
license reinstated.
¶1 PER CURIAM. The Board of Bar Examiners (BBE) appeals
a referee's report recommending the court reinstate B.R.C.'s
license to practice law subject to continued monitoring as
required by the terms of his conditional admission. B.R.C. is
currently suspended for failure to comply with certain terms of
his conditional admission. We accept the referee's findings and
conclusion that B.R.C. has satisfied character and fitness
requirements for purposes of bar admission in this state and we
No. 2012XX605-BA
reinstate B.R.C.'s license to practice law conditioned upon his
continued monitoring by the Wisconsin Lawyers Assistance Program
(WisLAP) until July 2, 2014.
¶2 This is the first time we have considered a petition
for reinstatement filed by a lawyer who was suspended for
failure to comply with terms of the lawyer's conditional
admission. In 2011, the court, at the behest of the BBE,
adopted SCR 40.075, authorizing conditional admission. See
S. Ct. Order 08-13, 2011 WI 40 (issued June 8, 2011, eff.
June 8, 2011). This rule affords certain bar applicants who
might otherwise have been denied admission to the bar because of
character and fitness concerns the opportunity to practice law
subject to various oversight mechanisms designed to protect the
public. B.R.C. was one of the early beneficiaries of this new
rule.
¶3 B.R.C. graduated from a Wisconsin law school in the
spring of 2011, and sought bar admission. Aspects of his bar
application, including a 2009 conviction for operating a motor
vehicle while intoxicated, raised character and fitness concerns
pertaining to his alcohol use. Following an evaluation, the BBE
offered B.R.C. conditional admission. The terms of his
conditional admission were set forth in a Consent Agreement For
Conditional Admission (Consent Agreement). The Consent
Agreement provided in relevant part that B.R.C. would be
conditionally admitted for a period of two years during which he
was required to abstain from alcohol use and to submit to
monitoring by WisLAP to ensure his compliance with the
2
No. 2012XX605-BA
conditions on his law practice. Pursuant to the Consent
Agreement, B.R.C. agreed, among other things, "[t]o submit to
random urinalysis testing for alcohol or other drugs as
determined appropriate by the Coordinator."
¶4 On December 27, 2011, B.R.C. accepted the offer of
conditional admission and signed the Consent Agreement. He was
sworn in on January 18, 2012, and began practicing law.
¶5 On March 1, 2012, B.R.C. met with WisLAP manager Linda
Albert who informed him that he also needed to execute a
separate "monitoring contract" with WisLAP. The WisLAP
Monitoring Contract contained some terms not mentioned in the
Consent Agreement.1 B.R.C. also learned that he could be
required to submit to hair follicle testing, fingernail testing,
and blood testing, which are more expensive than the urine
testing he had known would be required. B.R.C. refused to sign
the monitoring contract asserting that he should have been made
aware of the WisLAP requirements before he executed the Consent
Agreement. The BBE was advised of B.R.C.'s refusal to sign the
monitoring contract on March 12, 2012.
¶6 On May 11, 2012, the BBE voted to rescind B.R.C.'s
conditional admission for his continued refusal to sign a
monitoring contract and concomitant failure to submit to
monitoring. The BBE requested this court issue an order to show
1
For example, the monitoring contract contains the
requirement that "[i]f leaving the area where he/she lives or
practices (e.g. vacation, etc.) interferes with the terms of the
Monitoring Contract, the Participant will obtain consent from
the Monitor and/or WisLAP staff before leaving."
3
No. 2012XX605-BA
cause as to why B.R.C.'s license should not be suspended. The
order issued and, on June 27, 2012, B.R.C. filed a response
explaining his reasons for declining to sign the WisLAP
Monitoring Contract and asking the court to reconsider its order
to show cause.
¶7 By order dated July 2, 2012, this court informed
B.R.C. that his license would be suspended if he did not sign
the WisLAP Monitoring Contract within 14 days. The order
directed the BBE to reinstate B.R.C.'s conditional admission if
he signed the monitoring contract. We directed the BBE to
ensure that applicants offered conditional admission receive a
copy of the WisLAP Monitoring Contract before accepting
conditional admission. The BBE has since revised its procedures
accordingly.
¶8 In July 2012, some six months after commencing the
practice of law, B.R.C. signed a monitoring contract. On the
same day he signed the monitoring contract, B.R.C. received an
e-mail from WisLAP advising him that it had changed its third-
party administrator, requiring a new contract be executed, which
was provided. The two monitoring contracts were identical
except for the name of the administrator and the initiation date
and completion date. The dates on the first contract were from
January 18, 2012 through January 18, 2014. The dates of the
4
No. 2012XX605-BA
replacement contract were from July 2, 2012 to July 2, 2014.
B.R.C. signed the second contract. Monitoring commenced.2
¶9 Shortly after signing the contract B.R.C. noted and
challenged the revised completion date. On July 20, 2012, the
BBE director sent a letter to B.R.C. stating:
It is my understanding that you executed a
monitoring contract with WisLAP on July 16, 2012. The
initiation date of the monitoring contract is July 2,
2012. Accordingly, you will be monitored for two
years, from July 2, 2012, to July 2, 2014, which is
the Board's intent. Subject to that understanding, I
will advise the court that you are compliant and I
will seek to withdraw the request for your suspension.
However, if you are seeking to "post date" your
monitoring agreement to January 18, 2012, I will ask
the court to impose the suspension on your license.
¶10 B.R.C. timely replied to the BBE, arguing that he read
the court's order to impose the original terms such that
monitoring would end in January 2014, not July 2014. B.R.C. did
not address the fact that he had been practicing law for nearly
six months without submitting to the WisLAP monitoring expressly
required by his conditional admission. The BBE sought
2
B.R.C. moved to strike from page one of the BBE's reply
brief the words "B.R.C. chose not to sign the agreement,"
arguing that B.R.C. had in fact signed both a monitoring
agreement and a revised monitoring agreement. We held the
motion in abeyance pending our review of the record. We dismiss
the motion. The abbreviated chronological summary in the BBE's
reply brief did not adversely affect our consideration of
B.R.C.'s case. The court was aware, prior to B.R.C.'s
suspension, that B.R.C. had signed two versions of the
monitoring agreement in the wake of the court's July 2012 order
and that B.R.C. later argued he was entitled to an earlier
termination date.
5
No. 2012XX605-BA
suspension. B.R.C. objected to the suspension request,
reiterating his interpretation of the court's order.
¶11 By order dated August 14, 2012, this court suspended
B.R.C.'s license to practice law in Wisconsin for his continued
refusal to abide by the terms of his conditional admission.3
¶12 On October 12, 2012, B.R.C. filed a petition seeking
reinstatement. The BBE was directed to respond. Additional
filings ensued. The BBE recommended B.R.C.'s suspension
continue for one year, following which it would consider a
reinstatement petition and evaluate his eligibility for
conditional admission, but only if he underwent a comprehensive
psychological evaluation including personality testing.
¶13 B.R.C. opposed the request for a psychological
evaluation and requested a hearing. We appointed Referee John
Nicholas Schweitzer to consider this novel reinstatement
petition. Referee Schweitzer conducted proceedings culminating
in an evidentiary hearing on September 16, 2013. He filed a
report on October 16, 2013, recommending reinstatement subject
to B.R.C.'s continued monitoring by WisLAP until July 2, 2014,
and recommending B.R.C. bear the costs of this proceeding
consistent with SCR 40.075(5).
¶14 The BBE appeals. The BBE asks this court to require a
comprehensive psychological evaluation in order to ascertain
3
Nearly one year later, on August 6, 2013, B.R.C. objected
to the manner in which his license suspension was identified on
the State Bar of Wisconsin web site. We held the objection in
abeyance and now dismiss it as moot in view of our decision in
this matter.
6
No. 2012XX605-BA
whether other conditions may be warranted prior to
reinstatement. If the court deems reinstatement appropriate
now, the BBE asks the court to require monitoring for two years
following reinstatement. B.R.C. asks the court to reinstate his
law license without any conditions.
¶15 We must determine whether B.R.C. has met his burden of
demonstrating he has the requisite character and fitness to
warrant reinstatement of his conditional license to practice law
in Wisconsin. The referee considered B.R.C.'s petition for
reinstatement under SCR 40.064 and the guidelines established in
BA 6.02,5 BA 6.03,6 and SCR 22.29.7
4
SCR 40.06 provides, inter alia, that:
(1) An applicant for bar admission shall
establish good moral character and fitness to practice
law. The purpose of this requirement is to limit
admission to those applicants found to have the
qualities of character and fitness needed to assure to
a reasonable degree of certainty the integrity and the
competence of services performed for clients and the
maintenance of high standards in the administration of
justice.
. . . .
(3) An applicant shall establish to the
satisfaction of the board that the applicant satisfies
the requirement set forth in sub. (1). The board
shall certify to the supreme court the character and
fitness of qualifying applicants. The board shall
decline to certify the character and fitness of an
applicant who knowingly makes a materially false
statement of material fact or who fails to disclose a
fact necessary to correct a misapprehension known by
the applicant to have arisen in connection with his or
her application.
5
BA 6.02 provides:
7
No. 2012XX605-BA
Relevant Conduct or Condition. The revelation of
discovery or any of the following should be treated as
cause for further inquiry before the Board decides
whether the applicant possesses the character and
fitness to practice law:
(a) unlawful conduct
(b) academic misconduct
(c) false statements by the applicant, including
concealment or nondisclosure
(d) acts involving dishonesty or
misrepresentation
(e) abuse of legal process
(f) neglect of financial responsibilities
(g) neglect of professional obligations
(h) violation of an order of a court
(i) evidence of mental or emotional impairments
substantial enough to affect the applicant's ability
to practice law
(j) evidence of drug or alcohol dependency
(k) denial of admission to the bar in another
jurisdiction on character and fitness grounds
(l) disciplinary action by a lawyer disciplinary
agency or other professional disciplinary agency of
any jurisdiction
6
BA 6.03 provides:
Use of Information. The Board will determine
whether the present character and fitness of an
applicant qualifies the applicant for admission. In
making this determination . . . the following factors
should be considered in assigning weight and
significance to prior conduct:
(a) the applicant's age at the time of the
conduct
8
No. 2012XX605-BA
¶16 We affirm a referee's findings of fact unless they are
found to be clearly erroneous. See In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125; see also In re Bar Admission of Rusch, 171
Wis. 2d 523, 528-29, 492 N.W.2d 153 (1992). We review legal
conclusions de novo. Id. This court retains the ultimate
authority to determine who should be admitted to the bar of this
state. In re Bar Admission of Rippl, 2002 WI 15, ¶¶3, 16, 250
Wis. 2d 519, 639 N.W.2d 553.
¶17 Initially, the significant issue regarding B.R.C.'s
character and fitness to practice law in Wisconsin was his
alcohol use. See BA 6.02 (j). The referee noted that B.R.C.
(b) the recency of the conduct
(c) the reliability of the information concerning
the conduct
(d) the seriousness of the conduct
(e) the mitigating or aggravating circumstances
(f) the evidence of rehabilitation
(g) the applicant's candor in the admissions
process
(h) the materiality of any omissions or
misrepresentations
(i) the number of incidents revealing
deficiencies
7
Although the referee also considered the criteria set
forth in SCR 22.29, he determined that rule offered limited
guidance because it applies strictly to reinstatement following
a disciplinary revocation or suspension, which is always for a
specific period of time.
9
No. 2012XX605-BA
has participated in the WisLAP monitoring program, first under a
monitoring contract and later voluntarily, such that he has been
monitored since July 2012. The referee found that by all
indications, B.R.C. has not used alcohol since entering the
monitoring contract.8 The record supports these findings and we
accept them.
¶18 B.R.C.'s conduct during these proceedings led the BBE
to request a psychological evaluation, inclusive of personality
testing, the results of which would be utilized to determine
what, if any, additional conditions should be imposed on him.
The referee acknowledged that the BBE's concerns over B.R.C.'s
personality and psychological health are understandable but
ultimately concluded they are not "sufficiently well founded to
require him to submit to psychological testing."
¶19 On appeal, the BBE asks the court to require a
psychological evaluation. The BBE explains that it made this
request based on "a long series of events that have occurred
with B.R.C. over the course of the last two years" including
his:
[R]efusal to sign the monitoring contract, his
persistent belief and attempts at trying to negotiate
the terms of his monitoring contract and its timeline,
his lack of understanding and insight as to why the
Court suspended him, his contrition towards his
monitor, but the opposite behavior towards the manager
8
The parties have characterized B.R.C. as a "voluntary
participant" in the WisLAP monitoring program. He has checked
in more or less regularly and, as of the date of the hearing,
had been tested for alcohol in his system 26 times, with no
adverse result.
10
No. 2012XX605-BA
of WisLAP, Ms. Albert, as well as his insistence that
the Court and the BBE were persisting in violating his
rights.
¶20 First, as the referee observed, this case is not about
whether the BBE's decision to offer B.R.C. conditional admission
was appropriate. Supreme Court Rule 40.075 provides a
procedural mechanism for an attorney who wishes to challenge the
BBE's decision to offer conditional admission. B.R.C. did not
invoke that procedure. Instead, he accepted conditional
admission and became subject to the terms of the Consent
Agreement which required monitoring by WisLAP. Because he did
not abide by those terms, the court ultimately suspended his
conditional license to practice law. All arguments pertaining
to whether the BBE erred in offering conditional admission are
superfluous; we will not address them.
¶21 The referee considered both the initial dispute over
signing the WisLAP Monitoring Contract and the ensuing dispute
over the end date for that contract. The referee noted that
WisLAP and the BBE found that B.R.C.'s repeated objections were
at least in part self-serving. We agree. While he was
disputing the terms of his monitoring, B.R.C. kept practicing
law for some six months with no monitoring or oversight in
direct contravention of the essential terms of his conditional
admission. With respect to the end date of his monitoring, it
begs credulity to think the court would simply excuse six months
of noncompliance with oversight the BBE had deemed necessary to
ensure he could be safely recommended to the public.
11
No. 2012XX605-BA
¶22 On balance, however, the referee concluded that
B.R.C.'s questions, conduct, and interpretation of this court's
July 2, 2012 order were not entirely unreasonable, finding that
there was "an element of principle" in his objections and noting
that the BBE was directed to revise certain parts of its
procedures as a result of this proceeding. We accept and affirm
the referee's findings and conclusions, including his
determination that the BBE's concerns are not sufficiently well
founded to demonstrate a need for a psychological evaluation.
We therefore decline to require B.R.C. to undergo a
psychological evaluation as a condition or prerequisite of his
reinstatement.
¶23 The referee opined that completion of the two-year
monitoring contract scheduled to end July 2, 2014, was a
sufficient condition to impose on B.R.C.'s reinstatement. On
appeal, the BBE asks the court to require monitoring for two
years from the date of reinstatement. The BBE expresses a
legitimate concern that B.R.C.'s voluntary compliance with
monitoring while suspended is not an accurate proxy for whether
he can manage alcohol together with the stress of legal
practice.
¶24 We agree that B.R.C. must complete the full two years
of monitoring as his conditional admission originally required,
with a monitor located in the Milwaukee area, if possible. At
this time, there is insufficient cause to warrant extending the
conditions imposed on B.R.C. past July 2, 2014. See
SCR 40.075(6). If B.R.C. fails to comply with the terms of his
12
No. 2012XX605-BA
monitoring contract before it terminates, the parties shall
immediately advise the court and we reserve the right to
reconsider this decision. However, we accept the referee's
conclusion that B.R.C. has demonstrated character and fitness
sufficient to warrant his admission to the bar subject to
successful completion of the monitoring contract. Upon
completion of the monitoring contract he will be deemed
admitted, without conditions.
¶25 We caution B.R.C. that before he may practice law in
Wisconsin again he must ensure he has satisfied the requirements
applicable to all attorneys relating to continuing legal
education (CLE), bar dues, assessments and fees.9 If B.R.C.
cannot pay the full costs of this reinstatement proceeding
immediately, an agreement may be reached with the BBE to enable
him to pay the costs over time.10
¶26 IT IS ORDERED that the conditional admission of B.R.C.
to practice law in Wisconsin is reinstated subject to the
9
In its reply brief, the BBE advises the court that if
B.R.C. is readmitted in 2014, he will be required to comply with
the 2013-2014 CLE requirements by reporting 30 approved hours,
including three hours of ethics and professional responsibility;
or, if applicable, by electing the exemption available under
SCR 31.04 (2) for that reporting period. These are the standard
reporting requirements for anyone who was admitted to the
Wisconsin bar in 2012, and, more broadly, to those admitted in
even-numbered years.
10
On March 14, 2014, B.R.C filed a response to the
statement of costs asking that no costs be assessed. The BBE
then filed a reply on March 19, 2014, maintaining that full
costs are warranted. We impose the full costs of this
proceeding consistent with SCR 40.075(5).
13
No. 2012XX605-BA
requirement that B.R.C. shall comply with the remaining term of
the WisLAP monitoring contract that he signed in July 2012, with
a termination date of July 2, 2014.
¶27 IT IS FURTHER ORDERED that within 60 days of the date
of this order, B.R.C. shall pay to the Board of Bar Examiners
the costs of this proceeding, which are $4,752.65 as of March 4,
2014.
¶28 SHIRLEY S. ABRAHAMSON, C.J., did not participate.
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No. 2012XX605-BA
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