Office of Lawyer Regulation v. Schlieve , 364 Wis. 2d 275 ( 2015 )

2015 WI 80SUPREME COURT OF WISCONSIN
CASE NO.: 1997AP3862-D & 1996AP3390-D
COMPLETE TITLE: In the Matter of Medical Incapacity Proceedings
Against Nancy A. Schlieve, Attorney at Law.
Board of Attorneys Professional Responsibility ,
n/k/a
Office of Lawyer Regulation,
Complainant-Appellant-Respondent-
Respondent,
v.
Nancy A. Schlieve,
Respondent-Respondent-Petitioner-
Appellant.
MEDICAL INCAPACITY PROCEEDINGS AGAINST SCHLIEVE
OPINION FILED: July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2015
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents. (Opinion Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-respondent-petitioner-appellant, there
were briefs by Nancy Schlieve, Eau Claire, and oral argument by
Nancy Schlieve.
For the complainant-appellant-respondent-respondent, there
was a brief by Wayne A. Arnold, Rice Lake, and oral argument by
Wayne A. Arnold.
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2015 WI 80NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
Nos. 1997AP3862-D
1996AP3390-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Medical Incapacity Proceedings
Against Nancy A. Schlieve, Attorney at Law.
Board of Attorneys Professional Responsibility,
n/k/a Office of Lawyer Regulation,
FILED
Complainant-Appellant-Respondent-
Respondent, JUL 15, 2015
v. Diane M. Fremgen
Clerk of Supreme Court
Nancy A. Schlieve,
Respondent-Respondent-Petitioner-
Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
¶1 PER CURIAM. Nancy A. Schlieve has appealed from a
referee's report recommending the denial of Attorney Schlieve's
petition for reinstatement of her license to practice law in
Wisconsin. Attorney Schlieve argues that the medical incapacity
which resulted in the suspension of her law license has been
removed and that she is fit to resume the practice of law.
Nos. 1997AP3862-D
1996AP3390-D
¶2 After careful consideration of the matter and after
hearing oral argument, we conclude that Attorney Schlieve has
failed to meet her burden under Supreme Court Rule
(SCR) 22.36(6) to show by clear, satisfactory, and convincing
evidence that she is currently fit to resume the practice of
law. Accordingly, we deny her reinstatement petition. We also
find it appropriate to impose the full amount of costs of this
reinstatement proceeding, which are $20,367.49 as of January 29,
2015.
¶3 Attorney Schlieve was licensed to practice law in
Wisconsin in 1990. In 1997, this court imposed conditions on
her license directed toward her rehabilitation from alcoholism.
See In re Medical Incapacity Proceeding Against Schlieve,
Case No. 96-3390-D, 212 Wis. 2d 693, 569 N.W.2d 593 (Table)
(1997). In 1998, this court suspended Attorney Schlieve's
license due to her medical incapacity of alcoholism. The
suspension was imposed for an indefinite time. See In re
Medical Incapacity Proceedings Against Schlieve, 221 Wis. 2d
610, 585 N.W.2d 585 (1998).
¶4 In 2006, Attorney Schlieve filed a petition seeking
the reinstatement of her license to practice law. This court
denied reinstatement on the grounds that Attorney Schlieve had
failed to meet her burden of proving "fitness" as required by
SCR 22.36(6). See In re Medical Incapacity Proceedings Against
Schlieve, 2010 WI 22, 323 Wis. 2d 654, 780 N.W.2d 516.
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Nos. 1997AP3862-D
1996AP3390-D
¶5 Attorney Schlieve filed a second petition for
reinstatement on September 10, 2012. James G. Curtis, Jr. was
appointed as referee on December 18, 2012. A hearing was held
over the course of two days, with testimony completed on
March 13, 2014.
¶6 One of the witnesses who testified at the hearing was
Linda Albert, who manages the Wisconsin Lawyers Assistance
Program (WisLAP) which provides the systems and monitoring for
attorneys. Ms. Albert testified that Attorney Schlieve had
contacted WisLAP in the spring of 2013 inquiring about
monitoring since she was applying for reinstatement of her
license to practice law. Ms. Albert explained:
Nancy came into the program and, unlike the majority
of monitoring participants, has exhibited behaviors
that have required a lot of clarification of what is
to be done within monitoring.
. . . .
So a difficult time following directions of the
program, you know, having directions to make sure and
report all prescription medication to us, and then
discovering that she hasn't done that and having to
ask for that. You know, she has wanted to dictate the
terms of her testing, you know, when testing will be
and how it will be done and why we would need to do
hair testing.
. . . .
She had a positive screen for a mood-altering
substance in her September of 2013 screen. And I
asked her about it, and her answer was very vague and
something about, you know, having gotten medications
from different countries when she was traveling and
she didn't know if that could cause it.
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Nos. 1997AP3862-D
1996AP3390-D
And so we have to take a lot of time trying to
verify very objective data. And so, for example, with
the positive screen, we even went to her doctor and
asked for a list of prescribed mediations. And when
that came back, it did not include any medication --
any prescription for something with codeine in it for
September of 2013; yet she had a positive screen for
codeine. So it's been these types of things that have
become particularly time-consuming and difficult with
not following the directions and the questioning and
not agreeing with.
. . . .
So, in essence, what I have said to Nancy is --
you know, sent her a letter to state, you know, we can
follow her through her hearing today, but that she's
no longer appropriate to be in the monitoring program.
* * * *
It's been a case of difficulty of getting
information, problems following directions, causing
problems at the collection site, not giving access to
medical providers when the contract requires it. So I
don't anticipate that those things would change
because we've tried hard to work with them and to
redirect and to ask for what we need. . . . .
We don't have the staff time. And I don't think
that it's probably in the best interest to, you know,
try to continue to work with that behavior versus just
not have the relationship for either party. . . . .
* * * *
I would say that 99% of the people that have come into
monitoring are able to follow the instructions and
understand them and do things according to sequence
and provide the information requested.
And it's a pretty rare case when someone is not
able to do that.
¶7 Testimony was also received at the hearing from
persons in the Eau Claire city attorney's office. Eau Claire
City Attorney Stephen Nick testified that in his opinion
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Nos. 1997AP3862-D
1996AP3390-D
Attorney Schlieve had been dishonest, abused the legal system,
lacked the ability to navigate the city and court procedures,
and engaged in a pattern of intentional delay and avoidance with
respect to various city citations issued against her relating to
rental property. Assistant City Attorney Stephen Bohrer
testified about the numerous problems he had encountered with
Attorney Schlieve on various citation matters. He said she
would send undated faxes with no return fax or phone number.
Mr. Bohrer concluded that Attorney Schlieve was manipulating the
dates on the faxes for purposes of causing delay or causing
cases to become more complicated than they needed to be. Mr.
Bohrer said Attorney Schlieve's professionalism was very poor
and his inability to reach and communicate with her was very
frustrating.
¶8 The referee issued his report and recommendation on
May 5, 2014. The referee said that in the 2010 decision denying
her previous reinstatement petition, this court noted that under
SCR 22.36(6), the petitioner has the burden of showing by clear,
satisfactory, and convincing evidence that the medical
incapacity has been removed and that the petitioner is fit to
resume the practice of law, with or without conditions. The
referee also noted that the term "fit," as used in SCR 22.36(6),
with the phrase "to practice law," encompasses more than removal
of a medical incapacity, and that the term "fit" is sufficiently
broad to imply a state of preparedness to render competent legal
services.
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Nos. 1997AP3862-D
1996AP3390-D
¶9 The referee noted that Attorney Schlieve has not
practiced law since 1998, and during that time she has not been
employed outside the home. She has primarily spent her time
caring for her son, who has medical issues. The referee noted
that in addition to caring for her son, Attorney Schlieve has
been active in her church, in dog rescue efforts, and in other
community affairs. In recent times, she has been working with a
friend to establish two startup businesses, one offering tea
party services and one offering wedding planning services.
¶10 The referee noted that Attorney Schlieve has earned a
significant number of continuing legal education (CLE) credits
and has attended a significant amount of coursework, all online.
The referee noted that Attorney Schlieve provided a printout
from the State Bar listing CLE attendance and dues payments from
the early 1990s through January 2014. The referee said it was
impossible to determine precisely what courses Attorney Schlieve
had actually attended, since all were online courses.
¶11 The referee also said:
Ms. Schlieve is to be commended for the efforts
she has taken to update her education on various legal
topics. However attending courses on Whistleblowing
cases involving the SEC or IRS, or Sarbanes-Oxley, or
Mining Loss Symposiums, would seem to have little
bearing on her preferred practice areas. More
importantly, the record reflects that Ms. Schlieve has
not approached her re-education in an organized,
consistent and deliberate fashion. She has not
planned and prepared for the day when her license to
practice may be reinstated. She has taken courses for
the sake of taking courses in order to show that she
has gone beyond the minimum requirements of the rules.
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Nos. 1997AP3862-D
1996AP3390-D
¶12 The referee said that Ms. Albert's testimony about
Attorney Schlieve's participation in the WisLAP program raised a
number of serious questions. The referee said that after
Attorney Schlieve's second positive test for codeine, and after
Ms. Albert had informed Attorney Schlieve that WisLAP would
continue with monitoring efforts through the reinstatement
hearing but not thereafter, Attorney Schlieve contacted her
doctor's office and withdrew the medical release in favor of
WisLAP. Because of the positive drug screen in February of
2014, WisLAP again requested a list of Attorney Schlieve's
current medications and the dates they were first prescribed.
When the list was not forthcoming, WisLAP staff followed up with
the doctor and was informed that there was no medical
authorization from the patient.
¶13 The referee noted that around March 7, 2014, Attorney
Schlieve instructed her doctor's office to release the
information that she had a prescription for acetaminophen with
codeine, although the date when it was first prescribed was not
provided. The referee queries, "Was Ms. Schlieve attempting to
fabricate an explanation for the positive drug screen showing
codeine in her system? At a minimum, it would seem that Ms.
Schlieve was less than forthcoming in WisLAP's efforts to
understand the reason for the positive drug screen."
¶14 While the referee said he was satisfied that the
medical incapacity of alcoholism has been removed, the referee
said that, based on her interactions with WisLAP, two positive
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Nos. 1997AP3862-D
1996AP3390-D
drug screens showing codeine in her system, and her inability to
complete sustained monitoring for a period of at least 12
months, there was no objective verification from WisLAP that
Attorney Schlieve does not still suffer from a medical
incapacity. Moreover, the referee concluded that Attorney
Schlieve failed to sustain her burden to prove by clear,
satisfactory, and convincing evidence that she is currently fit
to resume the practice of law within the meaning of
SCR 22.36(6).
¶15 Attorney Schlieve argues that she has in fact
presented clear, satisfactory, and convincing evidence both that
her medical incapacity has been removed and that she is fit to
practice law. At oral argument, she stated that she would be
amenable to having her law practice monitored by a licensed
attorney. She said that an attorney indicated he would be
willing to monitor her. Attorney Schlieve stated that if her
law license is reinstated, she would like to practice in the
areas of adoption and immigration. She said the attorney she
identified as a possible monitor has no experience in either of
those practice areas.
¶16 The Office of Lawyer Regulation (OLR) argues that the
referee's findings, conclusions, and recommendations should be
upheld. The OLR notes that the referee had an extensive
opportunity to make personal observations of Attorney Schlieve
and the other witnesses, and that the referee set forth and
explained in detail the rationale and basis for his conclusion
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Nos. 1997AP3862-D
1996AP3390-D
that Attorney Schlieve's reinstatement petition should be
denied.
¶17 When we review a referee's report and recommendation,
we will adopt the referee's findings of fact unless they are
clearly erroneous. Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings Against Eisenberg,
2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.
¶18 Following a suspension for medical incapacity, an
attorney seeking the reinstatement of his or her license to
practice law must show both that the medical incapacity has been
removed and that the petitioner is fit to resume the practice of
law. As we noted in our order denying Attorney Schlieve's
previous reinstatement petition:
The term "fit," as used in 22.36(6) with the
phrase "to practice law," encompasses more than the
removal of a medical incapacity or being in a
physically, mentally, or morally sound state. The
term "fit" is sufficiently broad to imply a state of
preparedness to render competent legal services; that
is, to be prepared to provide the measure of expertise
to ensure the attorney may be safely recommended to
the community as a person to be consulted by and to
represent others in legal matters.
Schlieve, 323 Wis. 2d 654, ¶24.
¶19 Upon careful review of this matter, we agree with the
referee that Attorney Schlieve has failed to demonstrate that
she is currently fit to resume the practice of law.
Accordingly, we deny her petition for reinstatement.
¶20 Attorney Schlieve has filed an objection to the OLR's
statement of costs. Among other things, she argues that costs
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Nos. 1997AP3862-D
1996AP3390-D
should not include the fees of counsel for the OLR. This
court's general policy, as expressed in SCR 22.24(1m), is to
impose all costs, including the expenses of counsel for the OLR,
upon the respondent. We find no reason to depart from that
general practice here.
¶21 IT IS ORDERED that the petition of Nancy A. Schlieve
seeking reinstatement of her license to practice law in
Wisconsin is denied.
¶22 IT IS FURTHER ORDERED that within 180 days of the date
of this order, Nancy A. Schlieve shall pay to the Office of
Lawyer Regulation the costs of this proceeding, totaling
$20,367.49. If the costs are not paid within the time specified
and absent a showing to this court of her inability to pay the
costs within that time, the license of Nancy A. Schlieve to
practice law in Wisconsin shall remain suspended until further
order of the court.
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Nos. 1997AP3862-D.ssa
1996AP3390-D.ssa
¶23 SHIRLEY S. ABRAHAMSON, J. (dissenting). The court
is today reinstating the license of another attorney who
suffered from a medical incapacity. See In Re Disciplinary
Proceedings Against Linehan, 2015 WI 82, ___ Wis. 2d ___,
___ N.W.2d ___. In that case, the court imposed numerous
conditions to ensure that the attorney continues to receive
appropriate treatment and monitoring to prevent a relapse and to
protect his clients and the public. I would reinstate Attorney
Schlieve's license to practice law in Wisconsin subject to
strict conditions such as those imposed in Linehan.
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Nos. 1997AP3862-D.ssa
1996AP3390-D.ssa
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