Hausserman v. Bd. of Bar Exam'rs (In Re Hausserman) , 385 Wis. 2d 70 ( 2018 )

2018 WI 115SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP644-BA
COMPLETE TITLE: In the Matter of the Bar Admission of Daniel R.
Hausserman:
Daniel R. Hausserman,
Petitioner,
v.
Board of Bar Examiners,
Respondent.
BAR ADMISSION OF HAUSSERMAN
OPINION FILED: December 28, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 29, 2018
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner there, was an oral argument by Terry E.
Johnson and Von Briesen & Roper, Milwaukee.
For the Board of Bar Examiners, there was an oral argument
by Jacquelynn B. Rothstein, Director & Legal Counsel.
2018 WI 115NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP644-BA
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Bar Admission
of Daniel R. Hausserman:
Daniel R. Hausserman, FILED
Petitioner,
DEC 28, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Board of Bar Examiners,
Respondent.
Review of Board of Bar Examiners' decision. Decision
affirmed.
¶1 PER CURIAM. This is a review, pursuant to Supreme
Court Rule (SCR) 40.08(7), of the final decision of the Board of
Bar Examiners (Board) declining to certify that the petitioner,
Daniel R. Hausserman, satisfied the character and fitness
requirements for admission to the Wisconsin bar set forth in
SCR 40.06(1). The Board's decision was based primarily on
Mr. Hausserman's conduct in 2015, and his failure to disclose
certain matters on his bar application.
No. 2018AP644-BA
¶2 After careful review, we agree that the record before
us is insufficient to persuade us that Mr. Hausserman should be
admitted to the practice of law at this time. Accordingly, we
affirm.
¶3 There are, essentially, two concerns here. The most
significant involves Mr. Hausserman's conduct over a period of
approximately seven months during and after his final year of
law school. The other involves certain shortcomings with his
application for admission to the Wisconsin bar.
¶4 The standards for evaluating whether an applicant
should be admitted to the Wisconsin bar are well settled.
Supreme Court Rule 40.06(1)1 requires that applicants for bar
admission establish good moral character and fitness to practice
law. The burden rests with the applicant to establish character
and fitness to the satisfaction of the Board. See SCR 40.06(3)
and SCR 40.07. The Appendix to SCR Ch. 40 contains the Board's
rules that provide additional guidance to the Board and to
applicants.
1
SCR 40.06(1) provides:
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.
2
No. 2018AP644-BA
¶5 Bar Admission Rule (BA) 6.01 provides that "[a] lawyer
should be one whose record of conduct justifies the trust of
clients, adversaries, courts and others with respect to the
professional duties owed to them." That same section notes that
"[a] record manifesting a deficiency in the honesty, diligence
or reliability of an applicant may constitute a basis for denial
of admission."
¶6 Bar Admission Rule 6.02 provides that in determining
whether an applicant possesses the necessary character and
fitness to practice law, there are 12 factors that are "cause
for further inquiry." Several of these factors are implicated
here, including unlawful conduct, violation of an order of a
court, denial of admission to the bar in another jurisdiction on
character and fitness grounds, and concealment or nondisclosure
of information during the bar application process. See id. at
BA 6.02(a), (c), (h), and (k).
¶7 Bar Admission Rule 6.03 provides that in assigning
weight and significance to the applicant's prior conduct, the
following factors are to be considered:
(a) the applicant's age at the time of the conduct
(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
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No. 2018AP644-BA
(h) the materiality of any omissions or
misrepresentations and
(i) the number of incidents revealing deficiencies.
SCR Ch. 40 App., BA 6.03.
¶8 When, as here, we review an adverse determination, the
court adopts the Board's findings of fact that are not clearly
erroneous. In re Bar Admission of Rippl, 2002 WI 15, ¶16, 250
Wis. 2d 519, 639 N.W.2d 553. The court then determines,
de novo, whether the Board's conclusions of law, based on the
non-erroneous facts, are proper. When conducting our de novo
review, we, like the Board, use the guidelines established in
BA 6.01-BA 6.03.
¶9 We have, as counsel for Mr. Hausserman urged, focused
carefully on the facts of this record. Mr. Hausserman attended
Drake University Law School. In February 2014, when he was 25
and in law school, Mr. Hausserman met B.F., a Drake University
undergraduate student, and they began dating. The relationship
was serious. In December 2014 the relationship ended. Some
communication continued, however, and Mr. Hausserman thought the
relationship would resume.
¶10 On March 5, 2015, B.F. filed a complaint with Drake
University stating that she was receiving unwanted
communications from Mr. Hausserman. Mr. Hausserman's actions
between March and September 2015 are the primary reason his
Wisconsin bar application was denied.
¶11 On March 9, 2015, Drake University officials advised
Mr. Hausserman of the complaint and directed him to cease any
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No. 2018AP644-BA
further contact with B.F. Within two weeks Mr. Hausserman had
contacted B.F. by email at least twice. On March 27, 2015,
Mr. Hausserman sent B.F. three more emails and had called her.
¶12 On March 30, 2015, Drake University again directed
Mr. Hausserman to have no contact with B.F. On April 2, 2015,
following a meeting between University officials and
Mr. Hausserman, the University sent a letter to Mr. Hausserman
stating that he had violated the harassment provision of the
school's code of conduct. Mr. Hausserman was barred from campus
except for his academic classes.
¶13 On April 15, 2015, Mr. Hausserman sent B.F. another
email which began: "I am aware this is in violation of the no
communication/contact order and places me at risk of certain
arrest." Two days later and in an apparent attempt to reach
B.F., Mr. Hausserman sent a text message to her mother, also in
violation of Drake University's no-contact directive.
Thereafter, Mr. Hausserman was banned from the University except
for completing his final exams and attending his graduation
ceremony. He was advised that after his law school graduation,
he would be barred indefinitely from the university campus.
¶14 On May 16, 2015, hours after his law school
graduation, Mr. Hausserman left B.F. a telephone message. B.F.
contacted the City of Des Moines Police Department.
¶15 A few days later, the police spoke with
Mr. Hausserman, who said that he thought his graduation
terminated the restrictions on communicating with B.F. The
police told him to cease all contact with B.F. and warned him
5
No. 2018AP644-BA
that if he violated that directive he would be criminally
charged. Approximately one week later, B.F. contacted the City
of Des Moines Police Department again, to report that
Mr. Hausserman had sent her several more text messages.
¶16 On May 28, 2015, Mr. Hausserman was criminally charged
in Iowa with Harassment in the Third Degree. He pled guilty in
June of 2015 and received a deferred judgment, was placed on
probation for 12 months, and ordered to have no contact with
B.F.
¶17 Meanwhile, Mr. Hausserman had graduated and applied
for admission to the Iowa bar. At that time, however, the
aforementioned criminal charges were pending against him and,
following a hearing, the Iowa Board of Law Examiners (Iowa
Board) concluded, on June 17, 2015, that Mr. Hausserman had not
met his burden of demonstrating his character and fitness for
admission to the Iowa bar. He was not permitted to take the
Iowa Bar Exam. The Iowa Board apparently indicated that
Mr. Hausserman might be permitted to sit for the Iowa Bar Exam
in the future, when he could demonstrate that his harassment of
B.F. had truly ended. A behavioral health evaluation was
recommended. In its June 17, 2015 decision, the Iowa Board
stated:
An objective observer might find the above course of
events would have sent a crystal-clear message for Mr.
Hausserman to leave [B.F.] alone. Instead, Mr.
Hausserman relentlessly continued contacting [B.F.]
(and in one instance, her parents) in violation of the
no contact orders. The board also notes that a good
deal of this conduct occurred just before, and even
6
No. 2018AP644-BA
after, he filed his bar application. Mr. Hausserman
continued to pursue this course of aberrant behavior
come what may. Mr. Hausserman did acknowledge the
criminal prosecution had gotten his attention, but he
evinced no hint of remorse at the board interview and
certainly did not suggest the course of conduct had
come to an end.
(R. at 51).
¶18 In late September 2015, B.F. reported to police that
she had received a Snapchat friend request from Mr. Hausserman.
Following an interview with police, Mr. Hausserman admitted that
he had contacted B.F. again because he had reason to believe she
was involved in derogatory internet postings about him, and he
wanted to discuss that with her. He acknowledged this action
violated the terms of his deferred judgment. He was arrested
and his home searched. He was found to be in possession of four
firearms, two of which were loaded, in violation of his deferred
prosecution agreement.2
¶19 Mr. Hausserman was found in contempt of court,
sentenced to 30 days in jail, given a year of probation and
supervision, and ordered to complete a mental health assessment.
The mental health evaluation revealed no drug or alcohol issues,
but recommended that Mr. Hausserman undergo treatment to address
2
Mr. Hausserman explained at his Board hearing that he is a
sportsman, purchased the guns legally, and practices at a gun
range.
7
No. 2018AP644-BA
his behavior.3 The record indicates that Mr. Hausserman has not
attempted any further contact with B.F. since September 2015.
¶20 In November 2015, Mr. Hausserman first applied for
admission to the Wisconsin bar. Some delays that are not
relevant followed. In February 2017 he passed the Wisconsin Bar
Exam. On September 19, 2017, the Board informed Mr. Hausserman
that his bar application was "at risk" of denial for failing to
establish his good moral character and fitness within the
meaning of SCR 40.06(1) and BA 6.01. SCR 40.08(1). The Board's
concerns were not based solely on his conduct with B.F. The
Board also expressed concern about inadequate disclosures on his
Wisconsin bar application.
¶21 When Mr. Hausserman first applied to take the
Wisconsin Bar Exam in November 2015, he responded affirmatively
to Question 20 which asks, in part, whether the applicant has
been disciplined or placed on probation by a law school.
Mr. Hausserman explained that he had been placed on academic
probation for one semester. He failed to disclose the
restrictions Drake University imposed on him related to B.F.4
3
Mr. Hausserman has cited cost as a barrier to seeking
counseling as well as concerns that it might be perceived as
something undertaken merely to bolster his bar application.
4
By correspondence dated January 16, 2016, the Board directed Mr. Hausserman to
amend his application and explain why he failed to reveal his misconduct with B.F. Mr.
Hausserman did not file the requested amendment, but did include information about B.F. on a
subsequent bar application.
8
No. 2018AP644-BA
¶22 When asked to explain his harassment conviction,
Mr. Hausserman's answer was this: "[B.F.] made a criminal
complaint against me. The complaint was based on text messages
received from my number and emails received from my [email]
address."
¶23 Mr. Hausserman disclosed an underage drinking ticket
from 2007 and a 2012 citation for failing to have proof of
automobile insurance in connection with a traffic stop.
However, the Board was troubled by his description of these
events. He explained the ticket this way: while at a Badger
football game he was "grabbed by police because he had one foot
on the sidewalk." He explained the traffic citation like this:
he was driving his father's car and was pulled over because
"police don't like young kids driving nice cars."
¶24 Mr. Hausserman failed to report an incident from 2003
(when he was 15) in which he and a friend were cited for
destroying a mailbox. He had reported the incident on his law
school application.
¶25 Upon receipt of the Board's intent to deny letter,
Mr. Hausserman exercised his right to request a hearing, which
the Board conducted on January 19, 2018. Mr. Hausserman
appeared by counsel and testified. On March 7, 2018, the Board
issued an adverse decision concluding that Mr. Hausserman had
failed to establish good moral character and fitness to practice
law in Wisconsin under SCR 40.06(1) and (3).
¶26 Mr. Hausserman seeks this court's review. This court
retains supervisory authority and has the ultimate
9
No. 2018AP644-BA
responsibility for regulatory admission to the Wisconsin bar.
Rippl, 250 Wis. 2d 519. Mr. Hausserman argues that he has met
his burden of producing information sufficient to affirmatively
demonstrate his present character and fitness appropriate for
bar admission. BA 6.01. He asks this court to reverse the
Board's adverse decision and permit him to become a member of
the Wisconsin bar. He indicates that he would accept conditions
that this court might impose on his law practice.5
5
The parties both noted that the Board declined to offer
Mr. Hausserman conditional admission pursuant to SCR 40.075(1).
We accept the Board's determination that conditional admission
pursuant to SCR 40.075(1) was not appropriate here.
There is a difference between "conditional admission" and
"admission with conditions." "Conditional admission" is an
option set forth in SCR 40.075 that the Board may offer to
certain applicants. This option requires the applicant enter a
contract in which the applicant agrees to abide by certain
conditions during the initial years of law practice. For
example, an applicant with a record of substance abuse who can
document ongoing recovery might agree to maintain sobriety and
submit to random chemical testing for a period of time.
Conditional admission is confidential. If the applicant
successfully completes the terms of the contract, the conditions
expire.
"Admission with conditions" may occur if the Board renders
an adverse determination and the applicant seeks supreme court
review. If this court determines that the applicant has
sufficiently satisfied character and fitness requirements, this
court may order the Board to certify the applicant for
admission. The court may also impose certain conditions on the
applicant's practice of law, typically for a limited period of
time. These conditions are imposed by the court, as opposed to
the Board, and are a matter of public record. See, e.g., In re
Bar Admission of Jarrett, 2016 WI 39, 368 Wis. 2d 567, 879
N.W.2d 116.
10
No. 2018AP644-BA
¶27 The Board maintains that Mr. Hausserman's defiance of
law school officials, the police, and a court order reflects a
repeated and blatant disregard for authority and the rule of law
that should preclude his admission to practice law. Although
Mr. Hausserman took issue with the Board's characterization of
certain matters at oral argument, the underlying facts are not
really in dispute. Mr. Hausserman says that what occurred in
2015 was a brief, unfortunate, emotional episode in his life
that is not likely to recur and does not adversely reflect on
his ability to practice law. He emphasizes that his record
reflects no issues with honesty, probity, or truthfulness. He
suggests that however wrongful his behavior with B.F. may have
been, it involved motivations and circumstances "which are
entirely unrelated to the practice of law."
¶28 Mr. Hausserman acknowledges that he could have been
more forthcoming on his bar application, but says he thought the
Board had received all of the information because he had
supplied his entire student record. He disputes the Board's
conclusion with respect to character, arguing that while that is
no excuse for the mistakes he made, the circumstances underlying
Mr. Hausserman's behavior should have been considered in
assessing whether his conduct bears on his character and fitness
to practice law. He argues that the Board did not give weight
to Mr. Hausserman's explanation for his actions.
¶29 Mr. Hausserman argues that the Board's conclusion of
law is not supported by the record and, moreover, is
inconsistent with this court's resolution of other bar admission
11
No. 2018AP644-BA
cases. Mr. Hausserman correctly reminds this court that we
have, on occasion, overruled the Board and admitted certain
applicants despite troubling conduct.
¶30 We have carefully reviewed the facts of these unique
cases and have concluded that, on the record before us,
Mr. Hausserman cannot be admitted to their ranks.
¶31 The facts of these cases vary greatly. One applicant
had been convicted of theft in college and also admitted taking
personal items from an employer. She had multiple unpaid
traffic tickets and an ordinance citation for disorderly conduct
that occurred during her third year of law school. Rippl, 250
Wis. 2d 519. Her eventual admission by this court was
predicated on evidence that she had undergone treatment for
depression, demonstrated an excellent work ethic, offered
glowing recommendations, undertaken extensive community service,
and more than four years had passed since she had first sought
admission to the bar. Id. at ¶¶33-38.
¶32 Another applicant failed to disclose that she had been
involved with a series of alcohol-related incidents in college,
including argumentative run-ins with police and university
authorities. In re Bar Admission of Vanderperren, 2003 WI 37,
261 Wis. 2d 150, 661 N.W.2d 27. We admitted her after she had,
sua sponte, corrected omissions on her law school application,
undergone an AODA evaluation, produced reports showing that
alcohol was not a continuing problem and she was "in full
remission," had been admitted to practice law in Minnesota, and
some five years had elapsed since her last problematic incident.
12
No. 2018AP644-BA
¶33 Another applicant had been charged with inappropriate
sexual contact with two women that occurred at a social
gathering with colleagues from work. He was acquitted, but
agreed to resign from his employment with the police department.
In re Bar Admission of Anderson, 2006 WI 57, ¶26, 290
Wis. 2d 722, 715 N.W.2d 586. The court admitted him, noting
that he had voluntarily undergone an alcohol assessment, sought
counseling, and worked, all before attending law school, and his
record had been unblemished for some six years when he sought
admission to the bar.
¶34 Another applicant committed academic misconduct during
and after his first year in law school, falsifying a resume and
inflating his grades, then failed to disclose several serious
traffic infractions on his bar application. In re Bar Admission
of Jarrett, 2016 WI 39, 368 Wis. 2d 567, 879 N.W.2d 116. We
admitted him, with conditions, noting that he had completed
unpaid legal internships and meaningful legal volunteer work
serving economically challenged clients, offered glowing
recommendations that emphasized his work ethic, judgment, and
his compassion, and nearly four years had elapsed since his
academic misconduct.
¶35 Most recently, we admitted an applicant who had
submitted a heavily plagiarized paper in law school, failed a
required Professional Responsibility class, and failed to report
three underage drinking citations on his law school application.
In re Bar Admission of Nichols, 2017 WI 55, 375 Wis. 2d 439, 895
N.W.2d 831. We admitted him, with conditions, influenced by the
13
No. 2018AP644-BA
fact that employers who work closely with him speak highly of
him as an individual, and of his work ethic. We were strongly
influenced by the fact that the professor of the class in which
the applicant committed academic misconduct supported his
admission to the bar, noting that the applicant had been
"forthright in acknowledging his errors and accepting
responsibility." Approximately three years had elapsed between
the academic misconduct and his admission.
¶36 Crucial to these decisions are several common factors
that are not present in the record before us. These factors
include excellent character references, particularly from people
who are aware of the troubling conduct compromising the
application. These cases also include some affirmative evidence
of rehabilitation. In some cases, where mental health or
substance abuse issues may have been causally related to the
underlying conduct, and the applicant provided evidence of
having sought and pursued counseling or treatment. In other
cases the applicant has demonstrated an interest in and
commitment to the community, through the investment of time
which also speaks to character. And, a critical factor is the
passage of time. As time passes with no concerning conduct, we
are increasingly likely to be persuaded that the applicant has
addressed whatever concerns initially precluded admission.
¶37 As of the date of oral argument, three years have
elapsed since the last incident involving B.F. and there is no
evidence of any other concerning conduct during this period.
This reflects favorably on Mr. Hausserman. However, given the
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No. 2018AP644-BA
severity of his misconduct, which includes violation of a court
order, it is a relatively short period of time compared with the
cases noted above. Some additional unblemished time is
warranted. Mr. Hausserman offered two character references from
people who speak well of him. Again, this is commendable;
however, there was some question as to whether these individuals
were wholly informed of the matters of concern. These
recommendations are not on par with the highly persuasive
recommendations submitted on behalf of Nichols, Rippl, and
Jarrett.
¶38 We are satisfied that the Board considered all
relevant facets of Mr. Hausserman's application including the
seriousness of Mr. Hausserman's conduct, his lack of candor in
the admission process, and lack of evidence of his
rehabilitation. In re Bar Admission of Saganski, 226
Wis. 2d 678, 595 N.W.2d 631 (1999). The evidence supports the
Board's determination that Mr. Hausserman omitted material
information from his application by initially failing to advise
the Board of the B.F. incident in law school. It also supports
the Board's conclusion that Mr. Hausserman sought to minimize
his concerning conduct, by submitting incomplete and/or flippant
disclosures.
¶39 The record before us contains several factors that are
a cause for concern as set forth in BA 6.02 and BA 6.03,
particularly the existence of unlawful conduct (BA 6.02(a)),
concealment and nondisclosure of information on his bar
application (BA 6.02(c)), violation of a court order
15
No. 2018AP644-BA
(BA 6.02(h)), and denial of admission in Iowa on character and
fitness grounds (BA 6.02(k)). We have considered these factors
with reference to the recency of the conduct (BA 6.03(b)), the
seriousness of the conduct (BA 6.03(d)), evidence of
rehabilitation (BA 6.03(f)), the applicant's candor in the
admissions process (BA 6.03(g)), and the material nature of the
omissions (BA 6.03(h)), and we are not persuaded that
Mr. Hausserman can be safely admitted to the practice of law,
even with the cautionary imposition of certain conditions.
¶40 We thus determine that the Board properly concluded,
on the basis of facts that have not been shown to be clearly
erroneous, that Mr. Hausserman failed to meet his burden under
SCR 40.07 to establish the requisite moral character and fitness
to practice law "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." Accordingly, we affirm the Board's
decision declining to certify Mr. Hausserman for admission to
the Wisconsin bar.
¶41 In closing, we observe that nothing in SCR 40.04 or
elsewhere in SCR Ch. 40 precludes Mr. Hausserman from again
seeking admission to this bar when he believes he can
demonstrate his character and fitness to the satisfaction of the
Board and this court. See Saganski, 226 Wis. 2d 678, 680; In re
Bar Admission of Radtke, 230 Wis. 2d 254, 268-69, 601 N.W.2d 642(1999).
16
No. 2018AP644-BA
¶42 IT IS ORDERED that the decision of the Board of Bar
Examiners declining to certify that Daniel R. Hausserman has
satisfied the requirements for admission to the practice of law
in Wisconsin is affirmed.
¶43 IT IS FURTHER ORDERED the documents submitted under
seal are deemed confidential, and will be maintained under seal
until further order of the court.
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No. 2018AP644-BA
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