Office of Lawyer Regulation v. Godfrey Y. Muwonge

2016 WI 55
SUPREME COURT OF WISCONSIN
CASE NO.: 2007AP776-D
COMPLETE TITLE: In the Matter of Medical Incapacity Proceedings
Against Godfrey Y. Muwonge, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Godfrey Y. Muwonge,
Respondent-Appellant.
MEDICAL INCAPACITY PROCEEDINGS AGAINST MUWONGE
OPINION FILED: July 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: ABRAHAMSON, J. concurs (Opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 55
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2007AP776-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Medical Incapacity Proceedings
Against Godfrey Y. Muwonge, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
JUL 1, 2016
v. Diane M. Fremgen
Clerk of Supreme Court
Godfrey Y. Muwonge,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
reinstated, with conditions.
¶1 PER CURIAM. We review a report filed by Referee
Dennis J. Flynn, recommending that the court reinstate, with
conditions, Attorney Godfrey Y. Muwonge's license to practice
law in Wisconsin. After careful consideration we adopt the
referee's recommendation. We agree that Attorney Muwonge met
his burden under Supreme Court Rule (SCR) 22.36(6) to show by
No. 2007AP776-D
clear, satisfactory, and convincing evidence that he is
currently fit to resume the practice of law, with conditions.
Accordingly, we grant his reinstatement petition. We impose the
full costs of this proceeding, which are $8,118.32 as of
April 27, 2016. We also impose certain conditions on Attorney
Muwonge's license to practice law, as set forth herein.
¶2 Attorney Muwonge was admitted to practice law in
Wisconsin in 1997. He practiced immigration law in the
Milwaukee area. In April 2007, the OLR filed a disciplinary
complaint against Muwonge, alleging 43 counts of misconduct and
seeking the revocation of Muwonge's law license. Ultimately, it
became apparent that Attorney Muwonge suffered from a medical
incapacity and his license was indefinitely suspended.
¶3 Attorney Muwonge's early life experiences are highly
relevant to his chosen area of legal practice and also provide
context for his medical incapacity. As a young man in Uganda,
Muwonge was arrested, interrogated, and tortured due to his
perceived involvement in a resistance group. He sought and
eventually received asylum in the United States. Shortly after
arriving in Wisconsin, he matriculated at Marquette University,
earning an undergraduate degree in journalism in 1994 and a law
degree in 1997. Given his own experiences, he chose to practice
immigration law. He married and has children. Personally,
however, he struggled with post traumatic stress disorder
2
No. 2007AP776-D
(PTSD), alcoholism, and chemical addictions which adversely
affected his ability to practice law, leading to the 2007 OLR
complaint.
¶4 When the disciplinary complaint was filed, Muwonge
initially opted to file a petition for voluntary revocation of
his law license and a referee recommended we accept that
petition and revoke Muwonge's law license. Muwonge then
appealed, asking this court to consider his medical issues.
Following additional proceedings, on April 9, 2008, this court
temporarily suspended Muwonge's license pursuant to SCR 22.21.1
¶5 On September 29, 2008, the OLR and Muwonge stipulated
that Muwonge had a medical incapacity that precluded him from
defending against the disciplinary charges. On October 22, 2008,
a referee concurred, concluding that Muwonge had a medical
incapacity due to PTSD, alcoholism, chemical addictions, social
phobia, suicide ideation, and migraine headaches, making his
defense of the disciplinary proceeding impossible. The referee
recommended we abate the pending disciplinary proceedings and
suspend Muwonge's license. On December 23, 2008, the court
1
SCR 22.21 provides: "(1) The supreme court, on its own
motion, upon the motion of the director, or upon the motion of a
special investigator acting under SCR 22.25, may suspend
temporarily an attorney's license to practice law where it
appears that the attorney's continued practice of law poses a
threat to the interests of the public and the administration of
justice."
3
No. 2007AP776-D
issued an order adopting the referee's findings and conclusions.
We suspended Muwonge's license to practice law indefinitely
pursuant to SCR 22.16(4)2 and SCR 22.36.3
2
SCR 22.16(4) provides:
(4)(a) If in the course of the proceeding the
respondent claims to have a medical incapacity that
makes the defense of the proceedings impossible, the
referee shall conduct a hearing and make findings
concerning whether a medical incapacity makes defense
of the proceeding impossible. The referee may order
the examination of the respondent by qualified medical
or psychological experts.
(b) All papers, files, transcripts, communications,
and proceedings on the issue of medical incapacity
shall be confidential and shall remain confidential
until the supreme court has issued an order suspending
the attorney's license to practice law, or has
otherwise authorized disclosure.
(c) If the referee finds no medical incapacity that
would make the defense of the proceeding impossible,
the referee shall proceed with the misconduct action.
(d) If the referee finds that a medical incapacity
makes the defense of the proceeding impossible, the
referee shall file a report promptly with the supreme
court. If the court disapproves the referee's
finding, the court shall direct the referee to proceed
with the misconduct action. If the court approves the
referee's finding, the court shall abate the
misconduct proceeding and suspend the respondent's
license to practice law for medical incapacity until
the court orders reinstatement of the attorney's
license under SCR 22.36. Upon reinstatement, the
court shall direct the referee to proceed with the
misconduct action.
3
SCR 22.36 provides:
(1) An attorney whose license to practice law is
suspended or whose practice of law is subject to
(continued)
4
No. 2007AP776-D
conditions for medical incapacity may petition the
supreme court at any time for reinstatement of the
license or the removal of conditions.
(2) The supreme court shall refer the petition to the
director for investigation to determine whether the
attorney's medical incapacity has been removed.
(3) The filing of a petition for reinstatement
constitutes a waiver of any privilege existing between
the petitioner and any psychiatrist, psychologist,
physician or other health care provider that has
provided care to the attorney. The petitioner shall
disclose the name of every psychiatrist, psychologist,
physician and other health care provider that has
provided care following suspension or the imposition
of conditions and shall furnish the director written
consent to the release of information and records
requested by the medical experts appointed by the
director or a referee.
(4) The director may direct a medical or psychological
examination of the petitioner by such qualified
experts as the director designates and may direct that
the expense of the examination be paid by the
petitioner.
(5) Following the investigation, the petition shall
be submitted to a referee selected by the clerk of the
supreme court, based on geographic proximity to the
respondent's place of residence, and appointed by the
chief justice or, in his or her absence, the senior
justice.
(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.
(7) The referee shall hold a hearing on the petition,
if necessary, and file a report and recommendation in
the supreme court.
(8) If an attorney whose license to practice law has
been suspended for medical incapacity pursuant to SCR
(continued)
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No. 2007AP776-D
¶6 In the following years, Muwonge sought and obtained
treatment for his mental health and substance abuse issues.
¶7 On June 29, 2015, Muwonge filed this petition for
reinstatement. Referee Flynn was appointed and conducted an
evidentiary hearing in March 2016. Referee Flynn issued his
report and recommendation on April 11, 2016.
¶8 Reinstatement from a determination of medical
incapacity is governed by SCR 22.36. Under SCR 22.36(6) Muwonge
has the burden to prove by clear, satisfactory and convincing
evidence that the medical incapacity has been removed and that
he is fit to resume the practice of law, with or without
conditions.
¶9 The referee first considered whether Attorney Muwonge
has met his burden of proving that his medical incapacity has
been removed. The record includes favorable opinions from
Muwonge's medical and mental health treatment providers. The
referee observed that those who have been involved in Muwonge's
treatment view him as "totally committed to maintaining his
recovery status." His treating psychiatrist is unequivocal in
stating that Muwonge is fit to return to the practice of law,
22.35 is thereafter judicially declared to be no
longer in the condition previously determined under
Wis. Stat. chapter 51 or chapter 880 (1997-98), the
supreme court may direct reinstatement of the
attorney's license, with or without conditions.
6
No. 2007AP776-D
but recommends that he be supervised by another attorney and
limit his work to 40 hours per week. Another therapist concurs,
stating that Muwonge has regained control of his life and
effectively manages his psychological issues through
psychotherapy and medication.
¶10 In addition, Muwonge joined Alcoholics Anonymous in
May 2013, attends AA meetings at least three times a week; his
sponsor offered a positive reference. Linda Albert,
Administrator of the State Bar of Wisconsin Lawyer Assistance
Program (WisLAP) also provided a written statement and appeared
at the evidentiary hearing. Ms. Albert reported that under her
guidance and monitoring, Muwonge now voluntarily participates in
the WisLAP monitoring program under a formal written contract.
Ms. Albert testified that it is her opinion that Muwonge is in
full compliance with the WisLAP program and will likely continue
to be in compliance in the future. She recommended that, if
Muwonge is reinstated, he should be required to remain in the
WisLAP program for at least two years.
¶11 Demonstrating that the medical incapacity has been
removed is not enough to warrant reinstatement. With respect to
the "fitness" requirement in a medical incapacity reinstatement,
we have stated:
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,
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No. 2007AP776-D
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.
In re Medical Incapacity Proceedings Against Schlieve, 2010 WI
22, ¶24, 323 Wis. 2d 654 780 N.W.2d 516 (2010). As the referee
correctly observed, Muwonge must demonstrate that he has reached
a state of preparedness to render competent legal services and
that he can be safely recommended to the community as a person
to be consulted by and represent others.
¶12 To assess this, the referee addressed certain concerns
identified by the OLR during this proceeding.
¶13 First, Muwonge intends to resume an immigration
practice. This is potentially concerning because it was, in
part, his immigration practice that triggered his PTSD to the
point of incapacitation. More specifically, when faced with his
clients' immigration problems and the prospect of their
deportation, he would relive his own horrific traumas.
¶14 Second, Muwonge has been unemployed since 2008. This
is potentially concerning because his ability to handle the day-
to-day stress of a law practice remains an open question.
Muwonge has explained that he did not obtain outside employment
because he was unable to earn a sufficient salary to meet his
family's needs and also provide and pay for appropriate care for
8
No. 2007AP776-D
his son, who is severely autistic. Accordingly, he served as
the primary caretaker for his children, including his autistic
son, during his suspension.
¶15 Notably, however, the OLR does not oppose Attorney
Muwonge's reinstatement but rather recommends the court impose
certain conditions on his practice intended to address both the
aforementioned concerns. Muwonge acknowledges that conditions
are appropriate to address lingering concerns about his fitness
to practice law.
¶16 In addition to considering specific concerns, the
referee made general observations about Muwonge's reinstatement
and his fitness to practice law. Muwonge has acknowledged that
he should have sought treatment sooner, but the referee found
that the credible evidence indicates that he accepts
responsibility for wrongful conduct toward clients during the
period leading up to his suspension in December 2008. Muwonge
submitted numerous impressive and highly favorable character
references in support of his petition. He has entered into an
agreement with the OLR to repay the costs assessed against him
relating to his prior disciplinary and medical incapacity
proceedings, in the amount of $5,586.82. He has stated his
intent to make restitution for sums paid to former clients by
the Wisconsin Lawyers' Fund for Client Protection, which total
$47,743.35, subject to his ability to pay. The record also
9
No. 2007AP776-D
reflects that in January 2016, the Board of Bar Examiners filed
a letter indicating that Muwonge is currently in compliance with
the Supreme Court's CLE and EPR requirements for reinstatement.
¶17 The referee concluded that Muwonge has met his legal
burden of establishing by credible evidence that is clear,
satisfactory, and convincing that the medical incapacity noted
in the Supreme Court's December 23, 2008 order, has been removed
and that he is now fit to resume the practice of law in
Wisconsin with conditions. The referee expressed his belief that
Muwonge's reinstatement can be structured so as to provide
Muwonge the opportunity to resume the practice of law, while
also insuring the public is protected, by imposing certain
conditions on his law practice.
¶18 No appeal has been filed, so we consider this matter
pursuant to SCR 22.33(3).4 A referee's findings of fact will not
be overturned unless clearly erroneous. In re Disciplinary
Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43,
675 N.W.2d 747. We independently review the referee's legal
conclusion, noting that whether the petitioner has demonstrated
fitness to resume the practice of law presents a legal question
4
SCR 22.33(3) provides: "If no appeal is timely filed, the
supreme court shall review the referee's report, order
reinstatement, with or without conditions, deny reinstatement,
or order the parties to file briefs in the matter."
10
No. 2007AP776-D
which we review de novo. In re Disciplinary Proceedings Against
Chavez, 2012 WI 83, ¶ 14, 342 Wis. 2d 419, 816 N.W.2d 265.
¶19 We agree with the referee that Attorney Muwonge has
met his burden under SCR 22.36(6) to establish by clear,
convincing, and satisfactory evidence that his medical
incapacity is removed and that he is fit to resume the practice
of law. We agree that conditions on Attorney Muwonge's license
to practice law are appropriate to monitor his continued fitness
and to ensure the public is protected.
¶20 The referee, the OLR, and Attorney Muwonge himself
have all proposed various conditions that could be imposed on
Attorney Muwonge's law practice. While the level of detail and
the wording of these various proposals differ, fundamentally,
there is consensus. All concur that continued WisLAP monitoring
is critical, and we agree. All concur that Attorney Muwonge's
practice of law should be monitored by an experienced Wisconsin
attorney, and we agree. Attorney Muwonge has identified a
suitable attorney willing to monitor his law practice. Attorney
Harold Block, who has known Muwonge for over 30 years and
represented Muwonge when he sought immigration status after
coming to Wisconsin from Uganda, testified that he was willing
to monitor Muwonge if he is reinstated and the referee supports
his appointment.
11
No. 2007AP776-D
¶21 The practice monitor will oversee Attorney Muwonge's
practice of law and will seek to ensure that Attorney Muwonge
limits his practice to no more than 40 hours per week until his
treatment provider advises the monitor that this limit is no
longer necessary.
¶22 Some of the proposed conditions are typically required
in WisLAP monitoring contracts. WisLAP requires that attorneys
in the monitoring program execute a written monitoring contract,
the terms of which are modeled after industry standards for
monitoring lawyers and other impaired professionals and are
specific and tailored to meet the individual lawyer's needs.
For example, a monitoring agreement may require a lawyer to
abstain from the use of alcohol and all non-prescribed
controlled substances, may require attendance at a requisite
number of AA meetings each week, may require daily check-ins,
and may require random drug and/or alcohol testing. Appropriate
monitoring requirements will be set forth in Attorney Muwonge's
monitoring contract with WisLAP so we decline to enumerate them
here.
¶23 Other proposed conditions are designed to ensure
appropriate communication among and between Attorney Muwonge,
his practice monitor, WisLAP, and the OLR. We impose the
following conditions on Attorney Muwonge's practice of law:
12
No. 2007AP776-D
(1) WisLAP Monitoring. Continued participation
in the WisLAP monitoring program for a period of two
years following the date of this order;
(2) Law Practice Supervision and Status Reports.
Supervision of his law practice for a period of two
years following the date of this order. The court
appoints Attorney Howard Block to serve as practice
monitor. If Attorney Block ceases to be available to
monitor Attorney Muwonge, his successor shall be an
attorney approved by WisLAP. The practice monitor
will provide written reports to the OLR in September
and December 2016; March, June, September, and
December 2017; and March and June 2018. To facilitate
effective practice monitoring, Attorney Muwonge is
directed to provide his practice monitor with
permission to speak with all treating mental health
and substance abuse providers.
(3) Treatment and Status Reports. Continued
treatment as recommended by Attorney Muwonge's
treatment providers to address mental health issues,
with at least one mental health treatment provider
sending the OLR a written status report in January and
July 2017, and in January and July 2018;
(4) Financial obligations. Attorney Muwonge
shall, if he has not already done so and subject to
his ability to pay, make arrangements with the
Wisconsin Lawyers' Fund for Client Protection (Fund)
for repayment of any sums due to the Fund and shall
also make arrangements with the OLR for repayment of
outstanding costs.
¶24 We emphasize that Attorney Muwonge's reinstatement is
contingent upon his compliance with these conditions. If the OLR
learns that Attorney Muwonge has failed to comply with these
conditions, the OLR may petition this court for immediate
suspension of Attorney Muwonge's license to practice law pending
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No. 2007AP776-D
any further investigation or proceedings that may be necessary
under the circumstances.
¶25 The underlying disciplinary proceeding that brought
Attorney Muwonge’s medical condition to this court’s attention
in 2008 could not be resolved at that time. When Attorney
Muwonge was deemed subject to a medical incapacity, his defense
of the underlying proceeding was not possible and, consistent
with our court rules, the misconduct proceeding was held in
abeyance until such time as the court ordered reinstatement of
his license under SCR 22.26. See SCR 22.16(4)(d). That day has
arrived.
¶26 Our rules require that, upon reinstatement, “the court
shall direct the referee to proceed with the misconduct action.”
Id. The court will, consistent with the rules, issue a separate
order directing the referee to proceed with the abated
misconduct action. Nearly a decade has elapsed since the OLR
filed the disciplinary complaint and Attorney Muwonge has been
suspended for over eight of those years so we trust that the
parties will work to resolve the underlying matter
expeditiously.
¶27 Finally, we accept the referee's recommendation and
impose on Attorney Muwonge the full costs of this proceeding,
which are $8,118.32 as of April 27, 2016.
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No. 2007AP776-D
¶28 IT IS ORDERED that the petition for reinstatement of
the license of Godfrey Y. Muwonge to practice law in Wisconsin
is granted, effective the date of this order.
¶29 IT IS FURTHER ORDERED that, as conditions of the
reinstatement of his license to practice law in Wisconsin,
Godfrey Y. Muwonge shall comply with the following mandatory
conditions:
(1) WisLAP Monitoring. Continued participation
in the WisLAP monitoring program for a period of two
years following the date of this order;
(2) Law Practice Supervision and Status Reports.
Supervision of his law practice for a period of two
years following the date of this order. The court
appoints Attorney Howard Block to serve as practice
monitor. If Attorney Block ceases to be available to
monitor Attorney Muwonge, his successor shall be an
attorney approved by WisLAP. The practice monitor
will provide written reports to the OLR in September
and December 2016; March, June, September, and
December 2017; and March and June 2018. To facilitate
effective practice monitoring, Attorney Muwonge is
directed to provide his practice monitor with
permission to speak with all treating mental health
and substance abuse providers.
(3) Treatment and Status Reports. Continued
treatment as recommended by Attorney Muwonge's
treatment providers to address mental health issues,
with at least one mental health treatment provider
sending the OLR a written status report in January and
July 2017, and in January and July 2018;
(4) Financial obligations. Attorney Muwonge
shall, if he has not already done so and subject to
his ability to pay, make arrangements with the
Wisconsin Lawyers' Fund for Client Protection (Fund)
for repayment of any sums due to the Fund and shall
also make arrangements with the OLR for repayment of
outstanding costs.
15
No. 2007AP776-D
¶30 IT IS FURTHER ORDERED that within 120 days of the date
of this order, Godfrey Y. Muwonge shall pay to the Office of
Lawyer Regulation the costs of this proceeding, absent a showing
of his inability to pay.
¶31 IT IS FURTHER ORDERED that restitution is to be
completed prior to paying costs to the Office of Lawyer
Regulation.
¶32 IT IS FURTHER ORDERED that the court will, by separate
order, appoint a referee to proceed with the abated misconduct
action as required by SCR 22.16(4)(d).
¶33 IT IS FURTHER ORDERED that compliance with all of the
terms of this order remain a condition of Godfrey Y. Muwonge's
license to practice law in Wisconsin.
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No. 2007AP776-D.ssa
¶34 SHIRLEY S. ABRAHAMSON, J. (concurring). I join the
per curiam, but I have reservations about ¶26.
¶35 On April 21, 2016, the court adopted Rule Petition 14-
06 to grant more discretion to the OLR in disciplinary matters.
I wonder why the OLR cannot exercise its discretion with regard
to sending the old outstanding disciplinary matter to the
referee? Have we not given the OLR sufficient discretion?
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No. 2007AP776-D.ssa
1