Abby D. Padlock v. Board of Bar Examiners

2021 WI 69SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1945-BA
COMPLETE TITLE: In the Matter of the Bar Admission of Abby D.
Padlock:
Abby D. Padlock,
Petitioner,
v.
Board of Bar Examiners,
Respondent.
BAR ADMISSION OF ABBY D. PADLOCK
OPINION FILED: June 29, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
ZIEGLER, C.J. filed a dissenting opinion, joined by ROGGENSACK
and HAGEDORN, JJ.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs filed by Peyton B.
Engel and Hurley Burish, S.C., Madison.
For the respondent, there was a brief filed by Jacquelynn
B. Rothstein, Director and Legal Counsel, Board of Bar
Examiners.
2021 WI 69NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1945-BA
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Bar Admission
of Abby D. Padlock:
Abby D. Padlock, FILED
Petitioner, JUN 29, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Board of Bar Examiners,
Respondent.
REVIEW of the Board of Bar Examiners' decision. Reversed
and remanded.
¶1 PER CURIAM. We review, pursuant to Supreme Court
Rule (SCR) 40.08(7), the final decision of the Board of Bar
Examiners (Board) declining to certify that the petitioner, Abby
D. Padlock, has 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 its conclusion that
Ms. Padlock was deceptive in her law school application and in
her bar application by underreporting, in a misleading manner,
the details of an arrest that caused her to be charged with two
No. 2020AP1945-BA
felony drug charges, which were later dismissed pursuant to a
deferred prosecution agreement.
¶2 The initial duty to examine an applicant's
qualifications for bar admission rests with the Board. In the
final analysis, however, this court retains supervisory
authority and has the ultimate responsibility for regulating
admission to the Wisconsin bar. See In re Bar Admission of
Rippl, 2002 WI 15, ¶3, 250 Wis. 2d 519, 639 N.W.2d 553, and In
re Bar Admission of Vanderperren, 2003 WI 37, ¶2, 261
Wis. 2d 150, 661 N.W.2d 27. Here, although Ms. Padlock's
disclosures raised significant questions about her fitness to
practice law, we conclude that Ms. Padlock may be admitted to
the practice of law in this state. Accordingly, we reverse and
remand the matter to the Board for further proceedings.
¶3 Ms. Padlock was a high school athlete who played
Division I volleyball in college and graduated with excellent
grades. However, during and after college, sports injuries and
serious family issues led to what she describes as a "dark
time." When she was 24, Ms. Padlock wanted to work
internationally as a language instructor. To acquire money for
this venture she and a friend agreed to transport a substantial
amount of marijuana across state lines as a means of raising
cash.
¶4 In October 2015, Ms. Padlock and her friend left the
State of Oregon with a shipment of marijuana in her car that
they were attempting to deliver to Wisconsin. They were stopped
by law enforcement officials in Minnesota. Her friend, who was
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No. 2020AP1945-BA
driving at the time, consented to a K9 search. Officers
discovered seventy-six (76) individually sealed packages of
marijuana, weighing approximately 114 pounds in the vehicle.
They also found three cell phones, $473 in cash, assorted
marijuana edibles, other marijuana, and drug paraphernalia.
During a follow up search of Ms. Padlock's home, police found
$30,120, which was later subject to civil forfeiture.
¶5 Ms. Padlock was arrested and charged in Minnesota with
two felony counts of a controlled substance crime in the second
degree. She was offered a deferred prosecution agreement; the
felony charges were later reduced to one count of possession of
marijuana in the third degree, a misdemeanor. She received a
stay of adjudication, was sentenced to three days in jail, fined
$1,000, and placed on probation for two years. When she
successfully completed her probation, the charge was dismissed.
Ms. Padlock had been paid approximately $30,000 for the
attempted delivery; as noted, these funds were subject to a
civil forfeiture.
¶6 After Ms. Padlock was sentenced, but before she had
finished serving that sentence, she applied to the University of
Wisconsin Law School.
¶7 Ms. Padlock's disclosures on her law school
application form the first basis for the Board's decision to
deny her admission to the Wisconsin bar. The law school
application requires applicants to describe in detail any
criminal infractions that occurred prior to admission.
Applicants are directed to report instances in which they were
3
No. 2020AP1945-BA
cited, arrested, charged, convicted, or sentenced to any
criminal, civil, or ordinance violation at the federal, state,
or local level. The application also requires applicants to
answer whether or not the matter was resolved in a conviction, a
dismissal, or was resolved at the same or a different level of
seriousness as the original violation. Applicants must answer
even if a finding of guilt or sentence was suspended or
withheld, or if the record was expunged or sealed.
¶8 Ms. Padlock reported that she had been given a stay of
adjudication and that the charges against her had been
dismissed. This was inaccurate. The charges had not yet been
dismissed at the time Ms. Padlock applied to law school. She
was still on probation. Moreover, Ms. Padlock did not provide
any other details about the 2015 criminal matter. She did not
report the amount of marijuana that was discovered, the initial
felony charges that she faced, any information about the $1,000
fine, her three days in jail, or her two years of probation.
She did not mention the $30,000 civil forfeiture.
¶9 Ms. Padlock was admitted to the University of
Wisconsin Law School and began her studies. It is not disputed
that during law school, Ms. Padlock spoke openly about her
conviction in class and with colleagues and faculty. At some
point, Ms. Padlock received an offer to participate in a law
school program that required a background check. During this
background check, the law school learned the details of the
underlying criminal offense and determined that Ms. Padlock had
"seriously mischaracterized her 2015 criminal matter."
4
No. 2020AP1945-BA
¶10 The law school revoked its employment offer and
conducted an investigation. Ultimately, the law school imposed
no discipline on Ms. Padlock and she was permitted to complete
law school, although she was warned that this incident might
adversely affect her admission to the bar.
¶11 In November 2019, as a third-year law student
anticipating graduation, Ms. Padlock applied for admission to
the Wisconsin State Bar under the diploma privilege, SCR 40.03.
Ms. Padlock's disclosures on her bar application form the second
basis for the Board's decision to deny her admission to the
Wisconsin bar. In her bar application, Ms. Padlock reported
that in October of 2015, she "drove from Oregon to Wisconsin
with marijuana in [her] car." She reported that she was charged
with possession of marijuana on December 14, 2015. She
indicated that the final disposition of those charges was a stay
of adjudication with an ultimate dismissal of the charges.
¶12 Following some inquiries by the Board that resulted in
Ms. Padlock amending her bar application, the Board informed
Ms. Padlock that her bar admission application was at risk of
being denied on character and fitness grounds. SCR 40.08(1).
Ms. Padlock formally contested the Board's preliminary adverse
determination and requested a hearing before the Board.
¶13 The Board conducted an evidentiary hearing on
September 11, 2020, via videoconference. Ms. Padlock testified
about her history and her application materials. Professor Mary
Prosser and Professor Greg Wiercioch, both faculty members at
5
No. 2020AP1945-BA
the University of Wisconsin Law School, testified in support of
Ms. Padlock's application.
¶14 The Board issued a written adverse decision and order
on October 26, 2020. As relevant, the Board made the following
findings about Ms. Padlock's law school application:
11. In her application for admission to the University
of Wisconsin Law School, Ms. Padlock reported that she
made a conscious choice to do something that she knew
was wrong and illegal. She further reported that she
was charged with possession of marijuana on December
14, 2015. She indicated that the final disposition of
those charges was a stay of adjudication with an
ultimate dismissal of the charges. Ms. Padlock did
not provide any additional details about her arrest,
including, for instance, the amount of marijuana that
was discovered, the initial charges that she faced, or
any information about the $30,000.00 forfeiture.
12. At the time Ms. Padlock made those statements to
the University of Wisconsin Law School, her underlying
criminal charges had not been dismissed.
***
15. Specifically and with regard to the 2015 criminal
matter, Ms. Padlock failed to disclose on her law
school application that she was initially charged with
multiple counts of a controlled substances crime, that
she accepted guilt for one count of a controlled
substances crime, that she was sentenced on a count
different than the original one and that it was
resolved at a different level of seriousness, and that
she omitted the details of her sentence including a
$1000.00 fine, three days in jail, and two years of
probation.
¶15 The Board made the following findings about her bar
application and her credibility regarding her application
disclosures:
18. In her application for admission to the Wisconsin
bar Ms. Padlock reported that on October 27, 2015, she
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No. 2020AP1945-BA
"drove from Oregon to Wisconsin with marijuana in
[her] car." She did not reveal that she had been
transporting one hundred and fourteen (114) pounds of
marijuana, nor did she indicate that she was
originally charged with two counts of felony
trafficking of controlled substances.
19. In her testimony before the Board, Ms. Padlock
revealed that she had participated in another illegal
drug delivery between Oregon and Wisconsin
approximately two weeks prior to the October 27th
incident. She reported being paid $10,000 for the
earlier drug transaction. Ms. Padlock had not
previously revealed that information to the Board or
to the University of Wisconsin Law School.
***
24. By having repeatedly minimized her criminal
conduct surrounding her illegal transportation of
marijuana across state lines, Ms. Padlock demonstrated
a lack of character and fitness that is essential for
admission to the Wisconsin bar.
25. By engaging in repeated acts of misconduct,
including one that she disclosed for the first time
during her testimony before the Board, Ms. Padlock has
not met her burden of establishing her honesty,
diligence, or reliability.
26. Ms. Padlock has not demonstrated a sufficient
effort towards or provided any significant evidence of
rehabilitation.
27. By minimizing her criminal conduct in applying to
the University of Wisconsin Law School and on her
application for admission to the Wisconsin bar,
Ms. Padlock was both dishonest and deceptive. Her
explanations about each were neither plausible nor
believable. Accordingly, the Board did not find
Ms. Padlock to be a credible witness.
¶16 In its written decision the Board indicated that
Ms. Padlock had failed to provide details about her arrest,
including, for instance, the amount of marijuana that was
discovered, the initial charges that she faced, or any
7
No. 2020AP1945-BA
information about the $30,000 forfeiture. She did not disclose
that she had been transporting 114 pounds of marijuana or that
she was originally charged with two counts of felony trafficking
of controlled substances. The Board found, further, that these
omissions and incomplete disclosures were intentional. The
Board also emphasized that during the hearing, in response to a
question, Ms. Padlock disclosed that she had actually completed
another illegal drug delivery between Oregon and Wisconsin
approximately two weeks before the October 2015 incident and
that she had been paid $10,000 for that drug transaction. Ms.
Padlock had not previously revealed that information. The Board
found that Ms. Padlock lacked credibility, that her omissions
reflected an effort to deceive the law school and the Board, and
that she had failed to establish good moral character and
fitness to practice law in Wisconsin under SCR 40.06(1) and (3).
¶17 Ms. Padlock seeks review.1 The crux of this appeal is
whether Ms. Padlock has established that she has the requisite
character and fitness for admission to the bar. When this court
reviews an adverse determination of the Board pursuant to
SCR 40.08(7), we adopt the Board's findings of fact if they are
not clearly erroneous. In re Vanderperren, 261 Wis. 2d 150,
¶20. We then determine if the Board's conclusions of law based
on those facts are proper. Id.The court has decided this matter based on the record and
1
the written submissions of the parties. Neither party requested
oral argument.
8
No. 2020AP1945-BA
¶18 First, we observe that the Board properly declined to
offer Ms. Padlock conditional admission under SCR 40.075. The
character and fitness concerns that gave rise to the Board's
adverse determination are not amenable to conditional admission.
Only applicants who are able to demonstrate a record of
documented, ongoing recovery and who are able to meet the
competence and the character and fitness requirements may be
considered for conditional admission under SCR 40.075. When an
applicant appeals an adverse determination, this court may elect
to impose post-admission conditions as a condition of admitting
the applicant, but this is a distinct procedure from conditional
admission under SCR 40.075. In re Bar Admission of Jarrett,
2016 WI 39, 368 Wis. 2d 567, 879 N.W.2d 116.
¶19 Next, Ms. Padlock contends that two of the Board's
factual findings are clearly erroneous and should be rejected by
this court. See In re Bar Admission of Rusch, 171 Wis. 2d 523,
528-29, 492 N.W.2d 153 (1992). She further contends that the
Board's legal conclusion regarding her character is not
supported by the record evidence, and is inconsistent with other
decisions of this court. See Rippl, 250 Wis. 2d 519, ¶16; In re
Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41(1987). She suggests that the Board was biased against her and
that she did not receive a fair hearing. From her perspective,
the Board "has interpreted every word she spoke in the most
negative light possible, ignoring some of the evidence favorable
to her, and distorting the rest into the portrait of an
incorrigible liar." She maintains that she has met her burden
9
No. 2020AP1945-BA
of producing information sufficient to affirmatively demonstrate
her present character and fitness and she asks this court to
order her admission. Alternatively, she suggests that she
should be afforded admission with conditions.
¶20 The standards for evaluating an applicant's admission
to the Wisconsin bar are well-settled. Supreme Court Rule
40.06(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 SCRs 40.06(3) and 40.07.
The Appendix to SCR ch. 40 contains the Board's rules that
provide additional guidance to the Board and to applicants.
¶21 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."
¶22 Bar Admission Rule 6.02 provides that in determining
whether an applicant possesses the necessary character and
fitness to practice law, 12 factors "should be treated as cause
for further inquiry." BA 6.02 (Relevant Conduct or Condition).
As relevant, these factors include a person's unlawful conduct,
academic misconduct, false statements by the applicant,
including concealment or nondisclosure, and acts involving
dishonesty or misrepresentation. See id.10
No. 2020AP1945-BA
¶23 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;
(h) the materiality of any omissions or misrepresentations;
and
(i) the number of incidents revealing deficiencies.
See SCR ch. 40 App., BA 6.03.
¶24 The Board states that its adverse decision is
predicated on Ms. Padlock's alleged lack of candor in the
application process, BA 6.03(g)-(h), not her underlying
misconduct. It is not seriously disputed that the disclosures
made on Ms. Padlock's law school application were insufficient.
Ms. Padlock essentially concedes this as she admits that her
application "set her up for trouble with the Law School." She
maintains, however, that she did not intend to deceive the law
school and she attributes the admitted shortcomings to having a
"lay person's understanding of her legal position" at the time.
Ms. Padlock's disclosures on her bar application were less
problematic, but still appear to minimize her misconduct. So,
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No. 2020AP1945-BA
the critical question is whether Ms. Padlock's failure to make
sufficiently detailed disclosures on her law school and bar
applications reflects systematic evasion with an intent to
deceive, or simply an error in judgment.
¶25 Our case law emphasizes the extreme importance of an
applicant's candor with regard to prior misconduct as being as
important as the underlying misconduct itself. In In re Bar
Admission of Gaylord, 155 Wis. 2d 816, 456 N.W.2d 590 (1990), we
affirmed the Board's decision to deny an applicant admission
where the applicant failed to disclose having been charged three
times with criminal offenses including unlawful possession of a
controlled substance with intent to sell, and the possession of
a weapon without a permit. Id. at 819. We stated:
It must be emphasized that the basis of the decision
to decline certification of [the applicant's]
character and fitness to practice law was not her
conduct that led to the three criminal charges and the
numerous traffic offenses. Rather, [the Board]
determined that [the applicant] did not meet her
burden to establish good moral character and fitness
to practice law solely by virtue of the inaccuracies
and omissions in her admission application.
Id. at 822.
¶26 Our analysis in bar admission cases typically begins
with an assessment of the Board's factual findings, then
proceeds to the de novo review of its legal conclusions. Here,
this is complicated, somewhat, by the fact that the Board's
credibility determinations are intertwined with its legal
conclusion that Ms. Padlock lacks the character and fitness to
practice law. We are generally disinclined to second-guess
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No. 2020AP1945-BA
credibility determinations made by factfinders. That said, we
are charged with considering the record as a whole when we
conduct our de novo review of the Board's legal conclusions.
According, we review the evidence.
¶27 At the evidentiary hearing, Ms. Padlock acknowledged
that her law school application does not explicitly identify the
crime she was initially charged with, but points out that it
"does reference consequences that bespeak felony penalties."
She explains that from her perspective, it seemed as though
everyone knew about her arrest. She repeatedly notes that
anyone with access to the Internet has only to enter "Abby
Padlock" in a search engine to get a detailed account of her
arrest, complete with mugshot. She says that she assumed
(wrongly, she now agrees) that law schools undertook their own
investigations. She reasons that if she had been attempting to
cover up her history, she would not have spoken about it openly
with peers and professors, and would not have applied for a law
school student mentoring program that she knew required a
background check. She adds that the law school was ultimately
satisfied by her explanations and concluded that there was no
need to discipline her or take action against her. Ms. Padlock
maintains her oversights were unintentional, that she was not
dishonest, that the statements on her applications were not
false, and that she wrote what she thought was required of her.
¶28 Ms. Padlock also offered, in addition to her own
testimony, the character testimony of two of her academic
supervisors. Both stated that Ms. Padlock had been forthcoming
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No. 2020AP1945-BA
about her past. Professor Mary Prosser taught her small group
class on criminal law, and later supervised Ms. Padlock in the
Legal Assistance to Incarcerated People Project (LAIP).
Professor Prosser spoke at length about Ms. Padlock's honesty,
the fact that she did not shade the truth, the fact that she was
forthcoming, her belief that Ms. Padlock had not intended to
deceive the admissions department, and her conclusion that Ms.
Padlock was a suitable candidate for admission to the bar.
¶29 Adjunct Professor Greg Wiercioch also worked closely
with Ms. Padlock during her time in LAIP, and spoke about how
Ms. Padlock led off her application to the program with a
dramatic reference to her criminal case, stating: "Facing a 50-
year prison sentence can drastically change one's perspective on
life. Exactly one year, three weeks, and six days ago, I was in
this exact predicament." Professor Wiercioch stated he had no
concerns about her character, her honesty or integrity, or in
recommending her for admission to practice.
¶30 The Board's factual findings derive from Ms. Padlock's
undisputed underlying criminal misconduct, the disclosures on
her two applications, and from the Board members' credibility
determinations based on the testimony and evidence adduced at
the Board's hearing.
¶31 Ms. Padlock argues that the Board's factual finding
regarding evidence of her rehabilitation is clearly erroneous.
Specifically, the Board found that there was "a notable lack of
evidence that Ms. Padlock had engaged in any significant
rehabilitative efforts to offset her misdeeds." The Board
14
No. 2020AP1945-BA
stated that "Padlock has not demonstrated a sufficient effort
toward or provided any significant evidence of rehabilitation."
In its brief, the Board goes farther, claiming that Ms. Padlock
has exhibited effectively no evidence of rehabilitation. This
is an important challenge, as a number of our cases reflect the
importance of "post-incident" rehabilitative conduct when we
evaluate an applicant's character and fitness during an appeal
from an adverse determination. See, e.g., In re Bar Admission
of Anderson, 2006 WI 57, ¶26, 290 Wis. 2d 722, 715 N.W.2d 586(holding that Anderson's post-incident conduct has reflected a
record of good behavior and the establishment of the requisite
character and fitness to be admitted to the Wisconsin bar). The
Board's finding is not consistent with the record evidence.
¶32 The record reflects that Ms. Padlock provided services
to incarcerated persons through the LAIP program, citing her own
experience with the justice system as a reason for her
involvement with the program. She hoped to become a mentor,
publicly stating that that her experience fueled her desire to
help people, a sentiment her professors confirmed. She joined a
group of law students who went to Dilley, Texas, to provide
legal assistance to women seeking asylum. She fundraised,
organized, and led camps in Kenya staffed by UW students to help
disadvantaged children build sustainable futures. She was asked
to join the board of the nonprofit that ran the camps, and did
so. She regularly volunteered to provide legal assistance to
veterans at the Madison Veterans hospital. She started a small
business seven months after graduating law school. Based on
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No. 2020AP1945-BA
these undisputed facts of record we conclude there is
significant evidence of rehabilitation and we deem Finding 26
clear error.
¶33 Ms. Padlock next argues that the Board's factual
finding that she was dishonest and deceptive in her applications
is clearly erroneous. Finding 27 states:
By minimizing her criminal conduct in applying to the
University of Wisconsin Law School and on her
application for admission to the Wisconsin bar,
Ms. Padlock was both dishonest and deceptive. Her
explanations about each were neither plausible nor
believable. Accordingly, the Board did not find
Ms. Padlock to be a credible witness.
¶34 Ms. Padlock faces an uphill battle with this
challenge. The Board is brutally disparaging of her
credibility, employing rhetoric that seems, at times,
unnecessarily scathing. The Board condemns her "repeated and
flagrant displays at minimizing and concealing her wrongful
conduct." The Board says:
Ms. Padlock has consistently neglected to acknowledge
the seriousness and the breadth of her actions to any
one body or institution.
***
She selectively provides information about her
criminal history in dribs and drabs without a complete
accounting of the whole story, the whole picture, or
the whole truth, to either the University of Wisconsin
Law School or to the Board of Bar Examiners.
***
Ms. Padlock lies by omission unless and until
confronted by it as was the case during her hearing
before the Board when she reported, for the first
time, that she had been involved in a second illegal
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No. 2020AP1945-BA
drug smuggling operation to import a sizable amount of
marijuana to Wisconsin from Oregon for which she
supposedly received $10,000.
***
She has persistently and consistently demonstrated a
lack of candor and seems not to have any real inkling
about the importance of fully, completely, and wholly
embracing the truth.
***
The Board did not find her testimony with regard to
either claim to be credible or convincing. By
repeatedly minimizing her criminal conduct surrounding
the illegal transportation of drugs across state
lines, the Board found that Ms. Padlock manifested a
deficiency in honesty and integrity both of which are
essential characteristics for admission to the bar in
this state.
***
The Board has concluded that Ms. Padlock is unable to
recognize and to understand what it means to be
truthful, what constitutes a complete disclosure, or
how to be forthright and argues that she cannot be
expected to bring those essential skills to the table
as a lawyer in this state.
***
The Board is not persuaded that she has been anything
other than dishonest and deceptive.
¶35 One exchange at the hearing was clearly pivotal to the
Board's determination that the shortcoming in Ms. Padlock's
applications reflect a calculated effort to deceive the law
school and the Board. In response to a direct question from a
Board member, Ms. Padlock admitted that she had actually
successfully made one cross-country marijuana delivery before
she was caught, for which she was paid $10,000. For Ms.
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No. 2020AP1945-BA
Padlock, this admission evidences her "complete candor to the
Board——she could have kept this fact to herself, and no one
would have been the wiser." For the Board, this admission
clearly shredded whatever tatters of credibility Ms. Padlock
retained. The Board heavily faults Ms. Padlock for not
previously disclosing this incident. The Board says "[h]er
claim that she has never intentionally concealed her past is
simply false as illustrated not only by her failure to include
her first illegal drug transaction on her law school application
but also on her application for admission to the bar."
¶36 We generally accord deference to a factfinder's
credibility determinations because the factfinder has the
opportunity to observe the witness' demeanor and gauge the
testimony's persuasiveness. Here, the Board did not believe
Ms. Padlock's explanations for her incomplete disclosures, and
we are bound by that finding. However, the Board's disbelief of
Ms. Padlock's reasons for her insufficient disclosures does not
lead, inexorably, to the conclusion that she lacks the character
and fitness to practice law. Were that the case, any effort to
appeal an adverse determination predicated on credibility would
be a fruitless endeavor.
¶37 In our view, the Board gives undue weight to
Ms. Padlock's disclosure. Recall that the Board's stated basis
for deeming her application at risk was Ms. Padlock's lack of
candor on her applications – not her underlying criminal conduct
itself. Those charges were dismissed. While in no way
condoning her illegal activity, neither the law school
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No. 2020AP1945-BA
application nor the bar application requires an applicant to
disclose behavior that was immoral or even unlawful, but that
was never formally investigated or prosecuted. Such an
expectation would be entirely subjective, would place the honest
and forthright candidate at a disadvantage, and would be
impossible to administer.
¶38 The Board then wholly discounted the character
testimony of the two University of Wisconsin law professors who
know and worked with Ms. Padlock personally. The Board faults
them for apparently not knowing of her first drug delivery for
which she was never apprehended, and for not affirmatively
indicating they knew all the details of her underlying arrest
and prosecution. The Board states that it "is unknown whether
either knew about her first marijuana delivery for which she was
never apprehended. Regardless, each supported her admission to
the bar."
¶39 We find the Board's position in this regard somewhat
troubling. Both professors had extensive direct contact with
Ms. Padlock and both are longtime specialists in criminal law.
Moreover, as Ms. Padlock points out, every member of the Board
was given the opportunity, individually and by name, to ask them
questions. The goal of this proceeding was to evaluate
Ms. Padlock's character and fitness. It is perplexing that not
a single member of the Board asked a question of these character
witnesses. It is somewhat concerning that these witnesses were
then discredited for failing to answer questions that were never
asked of them.
19
No. 2020AP1945-BA
¶40 Moreover, the record before us reflects that each
professor did more than merely "allude to having some awareness"
of Ms. Padlock's crime. Professor Prosser described the letter
she wrote on Ms. Padlock's behalf to the court, seeking to
terminate her probation, and she stated that Ms. Padlock was
completely forthcoming about her situation. Professor Wiercioch
testified that his first introduction to Ms. Padlock was her
cover letter that led with an admission of her criminal charge.
He testified that she was up-front about her history, which they
discussed at length. The record confirms that both witnesses
had definite knowledge of Ms. Padlock's criminal case, and
believed that she was honest and forthcoming about it. Rather,
it seems these professors could not overcome the Board's
antipathy for Ms. Padlock.
¶41 This court has, on several occasions, certified
applicants to the bar despite an adverse determination from the
Board. Ms. Padlock points to In re Jarrett, 368 Wis. 2d 567.
Mr. Jarrett was admitted to practice law with conditions after
several incidents of demonstrated academic misconduct in law
school. Mr. Jarrett, unlike Ms. Padlock, was completely
forthcoming about his academic misconduct throughout the
application process, although he failed to disclose several
speeding tickets. Neither the Board nor the court were
persuaded by his explanation for doing so, but this court
determined that the omission regarding the tickets was
insufficient to preclude his admission.
20
No. 2020AP1945-BA
¶42 Also relevant to our analysis is In re Vanderperren,
261 Wis. 2d 150, where the Board's refusal to certify
Ms. Vanderperren was based primarily on her "less than
forthright and complete responses" to questions on her
application for admission to Hamline University School of Law,
and on her subsequent Wisconsin bar application. Her underlying
issues were not criminal, but involved a series of alcohol-
related incidents, obnoxious behavior, and argumentative run-ins
with police and university authorities. The Vanderperren case
reflects the importance of post-conduct rehabilitation because,
by the time this court considered her bar application, Ms.
Vanderperren had been admitted to practice law in Minnesota, had
passed the Wisconsin bar exam, had voluntarily corrected her bar
application, and several years had elapsed since her last
reported incident involving excessive alcohol consumption.
Vanderperren, 261 Wis. 2d 150, ¶65; see also Rippl, 250
Wis. 2d 519, ¶3. She had undergone an AODA evaluation and had
attended AA meetings and changed her drinking habits.
Accordingly, this court opted to admit her to the practice of
law.
¶43 Ms. Padlock reminds the court that here, more than six
years have elapsed since her criminal misconduct. We have
determined there is evidence of her rehabilitation on this
record and we accord more weight to the testimony of her faculty
supervisors than did the Board, and less weight to her
disclosure of information that – while unsavory – she was not
required to disclose.
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¶44 This was not an easy case. Ms. Padlock would have
done better to be exceedingly forthcoming on her law school and
her bar applications. That said, we have concluded that the
shortcomings in her applications are not sufficient to preclude
her admission to the bar in light of the record as a whole.
Denying Ms. Padlock admission to the bar because of the
shortcomings, even factoring in the Board's perception that she
minimized her misconduct, is simply too harsh a penalty under
the circumstances presented. Her goal of becoming a lawyer has
already been delayed, and her prospect of obtaining bar
admission has been uncertain. Her own actions - and the manner
in which she disclosed them - have caused her significant
obstacles, embarrassment, and had financial consequences. The
language of a much cited concurrence written by Justice Prosser
is apt here. He observed:
All in all, I believe the applicant deserves the
benefit of the doubt. She should have the opportunity
to begin the practice law with a clean slate-with the
understanding of the importance that courts attach to
character and ethics and a warning that this court has
a long memory.
Vanderperren, 261 Wis. 2d 150, ¶65. We again choose to exercise
our prerogative and afford this applicant the benefit of the
doubt.
¶45 Accordingly, we reverse the Board's conclusion of law
regarding Ms. Padlock's character and fitness to practice law,
and we direct the Board to certify Ms. Padlock's admission to
practice law in Wisconsin and her enrollment with the State Bar
of Wisconsin pursuant to SCR 10.03(2). The Board did not
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identify any conditions that should be imposed on Ms. Padlock in
the event we elected to admit her, and we impose no conditions
upon her practice of law.
¶46 IT IS ORDERED that the decision of the Board of Bar
Examiners declining to certify that Abby D. Padlock has
satisfied the requirements for admission to the practice of law
in Wisconsin is reversed and the matter is remanded to the Board
for further action consistent with this order.
¶47 IT IS FURTHER ORDERED that the documents submitted
under seal are deemed confidential and shall remain under seal
until further order of the court.
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¶48 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). I
would affirm the final decision of the Board of Bar Examiners
(Board) declining to certify Abby Padlock's character and
fitness for admission to the Wisconsin bar. The Board found
that Ms. Padlock underreported, in a misleading manner, the
details of a 2015 interstate drug trafficking incident that
caused her to be charged in Minnesota with two felony counts of
a Controlled Substance Crime in the Second Degree. I agree.
¶49 The inadequacy of the disclosures on her law school
application later caused the law school to determine that
Ms. Padlock had "seriously mischaracterized her 2015 criminal
matter." In fact, she was paid $10,000 to illegally transport
drugs cross country before being caught. With respect to the
underreported charges, Ms. Padlock failed to report the amount
of marijuana that was discovered: 114 pounds. She failed to
report that she faced felony charges. She failed to report that
she spent three days in jail, or that she was subject to a
$30,000 civil forfeiture. She inaccurately claimed that the
charges against her had already been dismissed when, in fact,
she was still on probation at the time she applied to law
school.
¶50 Ms. Padlock was warned that the insufficient
disclosures on her law school application might adversely affect
her admission to the bar. Nonetheless, Ms. Padlock again
underreported her criminal conduct in her application seeking
bar admission.
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No. 2020AP1945-BA.akz
¶51 Ms. Padlock's inadequate disclosures reflect dishonest
and deceptive behavior, which demonstrates that Ms. Padlock has
acted in a manner that is not honest, diligent, or reliable.
Coupled with the Board's finding that Ms. Padlock was not
credible nor convincing at the evidentiary hearing before the
Board, I conclude that there are simply too many incidents in
which, despite being previously warned, Ms. Padlock considered
candid disclosure optional.
¶52 Our cases emphasize the extreme importance of an
applicant's candor with regard to prior misconduct as being as,
if not more, important as the underlying misconduct itself.
See, e.g., In re Bar Admission of Gaylord, 155 Wis. 2d 816, 819,
456 N.W.2d 590 (1990) (affirming the Board's decision to deny
certification of bar applicant where the applicant failed to
disclose having been charged three times with criminal
offenses). The applicant in Gaylord did not meet her burden to
establish good moral character and fitness to practice law due
to the inaccuracies and omissions in her admission application.
Id. at 822. I conclude the same is true of Ms. Padlock. By
repeatedly minimizing her criminal conduct surrounding the
illegal transportation of drugs across state lines, Ms. Padlock
manifested a deficiency in honesty and integrity, both of which
are essential characteristics for admission to the bar in this
state.
¶53 Based on the record before this court, I am not
persuaded that Ms. Padlock has yet demonstrated the requisite
moral character and fitness "needed to assure to a reasonable
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No. 2020AP1945-BA.akz
degree of certainty the integrity and the competence of services
performed for clients and the maintenance of high standards in
the administration of justice." SCR 40.06. I would affirm the
Board's decision.
¶54 For the foregoing reasons, I respectfully dissent.
¶55 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and BRIAN HAGEDORN join this dissent.
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