Office of Lawyer Regulation v. Elizabeth A. Ewald-Herrick , 354 Wis. 2d 672 ( 2014 )

2014 WI 40
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP948-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Elizabeth Ewald-Herrick, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Elizabeth A. Ewald-Herrick,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST EWALD-HERRICK
OPINION FILED: June 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2014 WI 40
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP948-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Elizabeth Ewald-Herrick, Attorney at
Law:
Office of Lawyer Regulation, FILED
Complainant, JUN 19, 2014
v. Diane M. Fremgen
Clerk of Supreme Court
Elizabeth A. Ewald-Herrick,
Respondent.
ATTORNEY disciplinary proceeding. Attorney publicly
reprimanded.
¶1 PER CURIAM. In this disciplinary proceeding, the
referee concluded that the Office of Lawyer Regulation (OLR) had
proven the one count of misconduct contained in the complaint
filed by the OLR against Attorney Elizabeth A. Ewald-Herrick.
The OLR claimed that by committing her fourth operating while
intoxicated (OWI) offense in five years, Attorney Ewald-Herrick
committed a criminal act that reflects adversely on her fitness
No. 2013AP948-D
as a lawyer and thereby violated SCR 20:8.4(b).1 Based on this
violation, the referee recommended that Attorney Ewald-Herrick
be publicly reprimanded and that various conditions be placed on
her license directed toward her treatment for alcohol abuse.
¶2 Attorney Ewald-Herrick did not appeal the referee's
report and recommendation. Instead, she wrote a letter to this
court stating, among other things, that she had no objection to
the imposition of a public reprimand, but that she saw no point
in complying with and paying for court-ordered alcohol
monitoring when she intended to resign her Wisconsin law
license. Attorney Ewald-Herrick has since filed a petition to
voluntarily resign her law license pursuant to SCR 10.03(7)(a).2
¶3 The OLR recommends that this court: (1) publicly
reprimand Attorney Ewald-Herrick without any conditions; (2)
accept her petition to voluntarily resign her law license; and
1
SCR 20:8.4(b) states it is professional misconduct for a
lawyer to "commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects; . . . ."
2
SCR 10.03(7)(a) states as follows:
Voluntary resignation of membership. If a member
of the state bar files with the executive director a
written notice of the member's surrender of his or her
license to practice law and the acceptance by the
supreme court of his or her resignation in the state
bar, the person shall then cease to be a member of the
state bar and his or her name shall be removed from
the membership register. Before accepting a
resignation, the supreme court shall request from the
office of lawyer regulation information concerning
whether the attorney is the subject of any pending
grievances, investigations, or proceedings.
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No. 2013AP948-D
(3) order the OLR, if Attorney Ewald-Herrick applies for
readmission, to investigate whether conditions should be imposed
on her license.
¶4 After independently reviewing the record, we determine
that the facts as found by the referee demonstrate the
misconduct charged by the OLR——a violation of SCR 20:8.4(b). We
conclude that Attorney Ewald-Herrick's professional misconduct
requires a public reprimand. We grant Attorney Ewald-Herrick's
petition to voluntarily resign her Wisconsin law license. We
condition any future readmission to the State Bar of Wisconsin
on her submission to an alcohol and other drug abuse (AODA)
evaluation by a professional AODA counselor or treatment
provider, with the results of the evaluation to be submitted to
the OLR for its review and consideration. Finally, we conclude
that Attorney Ewald-Herrick should be required to pay 50 percent
of the costs of this proceeding.
¶5 Attorney Ewald-Herrick has been admitted to practice
law in Wisconsin since 1989. Attorney Ewald-Herrick's
disciplinary history consists of an October 2008 private
reprimand for professional misconduct consisting of a criminal
act; namely, a 2007 conviction for third offense OWI. This
court held that Attorney Ewald-Herrick's conviction reflected
adversely on her honesty, trustworthiness, or fitness as a
lawyer in other respects. See Private Reprimand No. 2008-31;
see also SCR 20:8.4(b).
¶6 On April 25, 2013, the OLR filed a complaint against
Attorney Ewald-Herrick alleging that in 2012, Attorney Ewald-
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No. 2013AP948-D
Herrick pled guilty to and was convicted of a fourth offense
OWI. The OLR claimed that by committing her fourth OWI offense
in five years, Attorney Ewald-Herrick committed a criminal act
that reflects adversely on her fitness as a lawyer and thereby
violated SCR 20:8.4(b). The OLR asked this court to publicly
reprimand Attorney Ewald-Herrick and to order her to: (1) enter
into a monitoring contract with the Wisconsin Lawyers'
Assistance Program (WisLAP) with various conditions; and (2)
sign reciprocal releases of confidentiality for each treatment
provider who is providing or has provided AODA or mental health
related treatment or services to her during the preceding five
years.
¶7 Attorney Ewald-Herrick admitted service of the OLR's
complaint, but did not file an answer.
¶8 On June 17, 2013, the parties filed a written
stipulation by which Attorney Ewald-Herrick pled no contest to
the SCR 20:8.4(b) violation alleged in the OLR's complaint. The
stipulation requested that an assigned referee approve the
stipulation and schedule further proceedings to determine the
appropriate sanction.
¶9 The referee, Hannah C. Dugan, held several status
conferences. Although there is no transcript of these
conferences in the record, it appears undisputed that Attorney
Ewald-Herrick stated during these conferences that she did not
object to a public reprimand. Attorney Ewald-Herrick also
stated, however, that because it was her intent to surrender her
law license, she saw no reason to agree to the conditions on her
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No. 2013AP948-D
license sought by the OLR. Attorney Ewald-Herrick also stated
that she did not want to incur the costs associated with any
briefing or hearing associated with the OLR's complaint.
¶10 In a written order, the referee directed the parties
to brief the issue of "why a hearing or a greater sanction is
not appropriate given the facts and the respondent's stated
refusal" to enter into a monitoring contract with WisLAP. The
OLR filed a brief stating that its sanction recommendation
remained unchanged because discipline should not be imposed in
anticipation of future non-compliance with a disciplinary order,
and because any future non-compliance could be addressed at the
time it occurs. Attorney Ewald-Herrick did not file a response
to the OLR's brief.
¶11 The referee filed a report on September 30, 2013. The
referee accepted Attorney Ewald-Herrick's no contest plea and
found that by committing her fourth OWI offense in five years,
Attorney Ewald-Herrick committed a criminal act that reflected
adversely on her fitness as a lawyer and thereby violated
SCR 20:8.4(b). The referee recommended a public reprimand and
the imposition of the following conditions:
 Enter into a monitoring contract with WisLAP, via OLR
referral, and fully comply with the conditions of the
contract, which may include, but may not be limited to:
o Abstain from using alcohol and other mood-altering
substances, unless prescribed by a licensed physician
and approved by WisLAP;
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No. 2013AP948-D
o Upon WisLAP's request, undergo an AODA and mental
health assessment by a professional selected by
WisLAP;
o Comply with all treatments recommended by the
assessment or treatment professionals;
o Submit to monitoring by a person selected by WisLAP,
comply with all conditions and reporting requirements
WisLAP deems appropriate, and comply with all
obligations under WisLAP's policies;
o Submit to random alcohol and substance abuse testing
as WisLAP determines appropriate; and
o Pay any and all costs incurred for monitoring,
including, but not limited to, costs for treatment,
random alcohol and drug screens, and other activities
required to stay in compliance with WisLAP monitoring
conditions.
 Sign reciprocal releases of confidentiality for each
treatment provider who is providing or has provided AODA
or mental health related treatment or services to
Attorney Ewald-Herrick during the preceding five years,
so that such treatment providers may share pertinent
information with each other, with WisLAP, with the
professional selected to conduct an assessment, and with
the OLR.
¶12 The referee wrote that these sanctions were
appropriate in light of, among other things, Attorney Ewald-
Herrick's "statements of intent not to comply with disciplinary
6
No. 2013AP948-D
orders and marginal cooperation in the disciplinary process,"
including her failure to file a brief regarding sanctions. The
referee wrote that Attorney Ewald-Herrick's statements at the
status conferences "do not reflect remorse for the conduct to
which she already pled." The referee also stated that Attorney
Ewald-Herrick showed an inadequate understanding of the
seriousness of her misconduct.
¶13 On October 28, 2013, Attorney Ewald-Herrick filed a
letter with the court objecting to certain aspects of the
referee's report. Attorney Ewald-Herrick stated that she was
not appealing the referee's report and recommendation.3 Attorney
Ewald-Herrick did, however, dispute the referee's charge that
she was unremorseful and unaware of the seriousness of her
misconduct. Attorney Ewald-Herrick stated that she was fully
aware of the seriousness of her misconduct; that she had been
sober since August 2012; that she had completed a 28-day in-
patient program; that she attends individual counselling weekly;
and that she participates in two Alcoholics Anonymous meetings
per week. Attorney Ewald-Herrick stated, however, that "I do
not believe that I can remain sober while practicing law. As a
result, I have decided to leave the practice of law." Attorney
Ewald-Herrick also stated that she could not afford the cost of
WisLAP monitoring, and that she wanted only "to leave the
3
We note that Attorney Ewald-Herrick's letter, filed
October 28, 2013, could not have served as a timely appeal from
the referee's September 30, 2013 report and recommendation. Cf.
SCR 22.17(1) (appeal from the referee's report must be filed
within 20 days after the filing of the referee's report).
7
No. 2013AP948-D
practice of law without incurring a huge debt." Attorney Ewald-
Herrick stated that although she had no objection to the
imposition of a public reprimand, she saw no point in complying
with and paying for WisLAP monitoring when she had no intention
to practice law.
¶14 Attorney Ewald-Herrick also requested the waiver of
costs, which total $1,254.65 as of October 21, 2013. Attorney
Ewald-Herrick stated that costs had been "the focus of my
concern" throughout the disciplinary proceeding because of her
financial troubles. Attorney Ewald-Herrick stated that she
urged the referee not to order any briefing because she knew
that costs would be assessed against her. Attorney Ewald-
Herrick claims that the referee ordered briefing nonetheless
because the referee did not know "how to handle a lawyer who
agreed with the discipline (a public reprimand) but did not
agree to comply with conditions."
¶15 On January 22 and February 13, 2014, this court
ordered Attorney Ewald-Herrick to formalize her position.
Specifically, the court ordered that she petition the court for
a voluntary resignation of her law license, if that was her
intent. See SCR 10.03(7). On February 21, 2014, Attorney
Ewald-Herrick filed a petition for voluntary resignation.
¶16 This court then ordered the OLR to file a response to
Attorney Ewald-Herrick's petition for voluntary resignation, and
to specifically discuss whether this court should accept
Attorney Ewald-Herrick's resignation. In its response, the OLR
recommended that the court accept Attorney Ewald-Herrick's
8
No. 2013AP948-D
petition for resignation and publicly reprimand her without any
conditions. The OLR further recommended that the court order
the OLR, if Attorney Ewald-Herrick applies for readmission, to
investigate whether conditions should be imposed on her license.
¶17 After having independently reviewed the record, we
adopt the referee's findings of fact. See In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,
675 N.W.2d 747. We also agree with the referee that those
factual findings demonstrate that Attorney Ewald-Herrick
committed a criminal act (fourth offense OWI) that reflected
adversely on Attorney Ewald-Herrick's honesty, trustworthiness,
or fitness as a lawyer in other respects. See SCR 20:8.4(b);
see also In re Disciplinary Proceedings Against Brandt, 2009 WI
43, ¶¶42-45, 317 Wis. 2d 266, 766 N.W.2d 194 (holding that a
pattern of multiple OWI convictions can demonstrate a serious
lack of respect for the law that reflects adversely on an
attorney's "fitness as a lawyer in other respects" under SCR
20:8.4(b) and can support a public reprimand). We also agree
that a public reprimand is appropriate discipline for Attorney
Ewald-Herrick's misconduct in this matter. See Brandt, 317
Wis. 2d 266, ¶45.
¶18 We decline to impose the referee's recommended
conditions on Attorney Ewald-Herrick's license (WisLAP
monitoring and medical release authorizations for AODA or mental
health records). Because we accept Attorney Ewald-Herrick's
unopposed petition for voluntary resignation of her law license,
there is no need to impose conditions on her license.
9
No. 2013AP948-D
¶19 We are mindful of our precedent holding that this
court must not allow an attorney to resign from the practice of
law in order to avoid the imposition of discipline for
unprofessional conduct. See, e.g., In re Disciplinary
Proceedings Against Schalow, 131 Wis. 2d 1, 6, 388 N.W.2d 176
(1986); In re Disciplinary Proceedings Against Snyder, 127
Wis. 2d 446, 452-453, 380 N.W.2d 367 (1986). Here, Attorney
Ewald-Herrick is not avoiding discipline by resigning her
license. As explained above, we have decided to publicly
reprimand Attorney Ewald-Herrick for her misconduct. We elect
not to impose conditions on a law license that she has decided
to surrender.
¶20 We advise Attorney Ewald-Herrick that we take very
seriously the fact that her professional misconduct stems from
her demonstrated alcohol abuse problem. If Attorney Ewald-
Herrick chooses in the future to petition for readmission to the
State Bar of Wisconsin, she must submit to an AODA evaluation by
a professional AODA counselor or treatment provider; this
evaluation will assess Attorney Ewald-Herrick's substance abuse
history and current status and make specific recommendations for
any necessary continuing treatment. A copy of the written AODA
evaluation shall be submitted to the OLR for its review and
consideration and shall be maintained by it as confidential.
¶21 Finally, we turn to the issue of costs. Both the OLR
and the referee maintain that Attorney Ewald-Herrick should be
made to pay the full costs of this disciplinary matter——
$1,254.65 as of October 21, 2013——consistent with the court's
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No. 2013AP948-D
general practice to levy the full costs of the disciplinary
proceeding on the respondent attorney. See SCR 22.24(1m). As
mentioned earlier, Attorney Ewald-Herrick asks for a waiver of
costs because she is in poor financial shape and because the
costs in this case were partially driven by a dispute over
possible conditions on her law license——a license she has
consistently stated she wanted to surrender.
¶22 We agree with Attorney Ewald-Herrick that a reduction
in costs is warranted. It would be unfair to Attorney Ewald-
Herrick to impose all of the costs of litigating the conditions
to be imposed on a law license that she has resigned consistent
with her stated intentions throughout this disciplinary
proceeding.
¶23 However, we reject Attorney Ewald-Herrick's assertion
that we should assess no costs at all. Attorney Ewald-Herrick
has been determined to have committed the misconduct charge
brought by the OLR. This misconduct——a violation of
SCR 20:8.4(b) caused by a fourth offense OWI conviction——was
undeniably serious, and this is the second time that Attorney
Ewald-Herrick has been disciplined for a drunk driving
conviction. These factors weigh against a reduction in costs.
See SCR 22.24(1m)(a), (b), (e).
¶24 On balance, we deem it appropriate to impose 50
percent of the costs on Attorney Ewald-Herrick, or $627.33. Our
determination is not the result of the application of a precise
mathematical formula, but is based on our thorough consideration
11
No. 2013AP948-D
of the record, the unusual posture of this case, and the factors
set forth in SCR 22.24(1m).
¶25 IT IS ORDERED that Elizabeth A. Ewald-Herrick is
publicly reprimanded for her professional misconduct.
¶26 IT IS FURTHER ORDERED that Elizabeth A. Ewald-
Herrick's petition for voluntary resignation of her Wisconsin
law license is granted and her license is hereby surrendered.
¶27 IT IS FURTHER ORDERED that any future readmission of
Elizabeth A. Ewald-Herrick to the State Bar of Wisconsin is
conditioned on her submission to an AODA evaluation by a
professional AODA counselor or treatment provider. A copy of
the written AODA evaluation shall be submitted to the Office of
Lawyer Regulation for its review and consideration and shall be
maintained by it as confidential.
¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Elizabeth A. Ewald-Herrick shall pay to the
Office of Lawyer Regulation costs in the amount of $627.33.
¶29 IT IS FURTHER ORDERED that the director of the Office
of Lawyer Regulation shall advise the court if there has not
been full compliance with all conditions of this order.
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No. 2013AP948-D
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