Office of Lawyer Regulation v. Daniel W. Johns, Jr.

2014 WI 32
SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2760-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Daniel W. Johns, Jr., Attorney at Law:
Office of Lawyer Regulation,
Complainant-Appellant,
v.
Daniel W. Johns, Jr.,
Respondent-Respondent.
DISCIPLINARY PROCEEDINGS AGAINST JOHNS
OPINION FILED: June 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 23, 2013
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
NOT PARTICIPATING: BRADLEY, J., did not participate.
ATTORNEYS:
For the Office of Lawyer Regulation there were briefs by
Thomas J. Basting Sr., Madison, and oral argument by Thomas J.
Basting Sr.
For the respondent-respondent, there was a brief by Dean R.
Dietrich, and Ruder Ware L.L.S.C., Wausau, and oral argument by
Dean R. Dietrich.
2014 WI 32
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2760-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Daniel W. Johns, Jr., Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Appellant,
JUN 6, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Daniel W. Johns, Jr.,
Respondent-Respondent.
ATTORNEY disciplinary proceeding. Complaint dismissed.
¶1 PER CURIAM. In this disciplinary proceeding, the
referee concluded that the Office of Lawyer Regulation (OLR) had
proven violations on one of two counts contained in the
complaint filed by the OLR. Based on that violation, the
referee recommended that Attorney Daniel W. Johns, Jr., be
either privately or publicly reprimanded. The OLR appeals from
the referee's report and recommendation, arguing that the court
should determine that Attorney Johns committed both counts of
misconduct and should be suspended for 60 days.
No. 2011AP2760-D
¶2 After independently reviewing the record, we accept
the facts as found by the referee. We agree with the referee's
conclusion that Attorney Johns' conduct resulting in a 2004
felony conviction does not reflect adversely on his honesty,
trustworthiness, or fitness as a lawyer in other respects so as
to violate SCR 20:8.4(b).1 We disagree with the referee's
conclusion that Attorney Johns violated SCR 21.15(5),2 as
enforced via SCR 20:8.4(f),3 by failing to notify the clerk of
the supreme court and the OLR, in writing, of his conviction.
We conclude that Attorney Johns' violation of SCR 21.15(5) was
too technical to justify the imposition of legal consequences.
Accordingly, the complaint is dismissed.
1
SCR 20:8.4(b) states that 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 21.15(5) provides:
An attorney found guilty or convicted of any
crime on or after July 1, 2002, shall notify in
writing the office of lawyer regulation and the clerk
of the [s]upreme [c]ourt within 5 days after the
finding or conviction, whichever first occurs. The
notice shall include the identity of the attorney, the
date of finding or conviction, the offenses, and the
jurisdiction. An attorney's failure to notify the
office of lawyer regulation and clerk of the supreme
court of being found guilty or his or her conviction
is misconduct.
3
SCR 20:8.4(f) states that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."
2
No. 2011AP2760-D
¶3 Attorney Johns was admitted to the practice of law in
Wisconsin in 1999. He has no disciplinary history.
¶4 On November 30, 2011, the OLR filed a two-count
complaint against Attorney Johns. This court appointed the
Honorable James R. Erickson as referee. The referee held an
evidentiary hearing on June 28, 2012. Both parties submitted
post-hearing briefs.
¶5 The referee submitted a report containing his findings
of fact, conclusions of law, and a recommendation for
discipline. The findings of fact incorporated a stipulation
between the parties and a series of exhibits attached to that
stipulation. The findings of fact and conclusions of law are
summarized below.
¶6 When reviewing the referee's report, we will affirm
the referee's findings of fact unless they are found to be
clearly erroneous, but we will review the referee's conclusions
of law on a de novo basis. See In re Disciplinary Proceedings
Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740
N.W.2d 125.
¶7 Shortly before 1:00 a.m. on December 28, 2002, when he
was 29 years old, Attorney Johns was the driver in a deadly one-
vehicle drunk driving accident. Earlier that evening,
Attorney Johns had met his father, stepmother, brother, and
other family members at a restaurant in northern Wisconsin to
celebrate the holidays. After dinner, Attorney Johns and his
brother stayed at the restaurant bar with friends. When the
restaurant closed, Attorney Johns and his brother left in
3
No. 2011AP2760-D
Attorney Johns' pickup truck, with Attorney Johns driving.
According to the police report, it is unlikely that either
Attorney Johns or his brother were wearing seatbelts.
Attorney Johns drove too fast as he turned from U.S. Highway 51
onto a county highway. Attorney Johns lost control of the
truck, causing it to skid off the roadway and strike a tree.
Attorney Johns' brother was partially ejected from the truck;
his head hit the tree, causing fatal injuries. Medical
personnel arrived at the scene and transported Attorney Johns'
brother to the hospital, where he was declared dead.
¶8 Attorney Johns was also transported to the hospital.
He was in great distress over his brother's death. He had a cut
above his eye, but did not permit medical staff to treat his
injury. He also had a strong odor of intoxicants and slurred
speech.
¶9 Police concluded that, given Attorney Johns' head
injury and emotional state, standard field sobriety exercises
would be inaccurate and inappropriate. Attorney Johns refused
to submit to a blood draw. A police officer directed hospital
personnel to draw a sample of Attorney Johns' blood.
Attorney Johns had a blood alcohol content of .257%.
¶10 Attorney Johns was arrested and, after being read his
warnings under Miranda v. Arizona, 384 U.S. 436 (1966), declined
to answer any questions and invoked his right to counsel.
¶11 On June 10, 2004, Attorney Johns pled guilty to and
was convicted of one count of homicide by use of a vehicle with
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No. 2011AP2760-D
a prohibited alcohol concentration. Attorney Johns has no other
criminal history.
¶12 Before the circuit court accepted Attorney Johns'
plea, there was some confusion amongst the parties and the court
as to whether a conviction on this count would result in an
automatic revocation of Attorney Johns' law license.
Attorney Johns' lawyer stated that it was his understanding that
a felony conviction would not result in an automatic revocation
of Attorney Johns' law license, but rather that the OLR would
need to examine the nature of the crime and its relation to
Attorney Johns' fitness to practice law. The circuit court
expressed uncertainty on this point. The circuit court ordered
a recess and directed the prosecutor, defense counsel, and
Attorney Johns to telephone the OLR and resolve the issue. They
did so in an off-the-record telephone conversation.
¶13 When the parties returned on the record,
Attorney Johns' lawyer stated as follows:
Judge, we were successful in getting hold of the
Office of Lawyer Regulation. We talked to the deputy
director, John O'Connell is his name, and he advised
us that my understanding of what would happen here
with regard to OLR action was correct and I actually
advised Mr. Johns correctly regarding all of that.
To summarize, in the State of Wisconsin there is
not any provision that calls for an automatic
revocation or suspension of license based solely upon
the felony conviction. Mr. O'Connell referenced the
standards that I referenced previously on the record,
and that if there were any action taken, it would bear
upon Mr. Johns' fitness to practice law and would not
relate to the nature, the classification of the
5
No. 2011AP2760-D
conviction but rather the facts and circumstances of
the conduct.
¶14 With this explanation on the record, the circuit court
accepted Attorney Johns' plea and entered a judgment of
conviction. The circuit court sentenced Attorney Johns to 120
days in jail, with five years of probation.
¶15 Attorney Johns served his jail time and was released
on probation. At the halfway point of Attorney Johns'
probation, his probation agent recommended that he petition for
early termination of probation. The circuit court supported an
early termination, noting in a letter to the district attorney
Attorney Johns' "extraordinary record of community service" and
his "180-degree turnabout" from the behavior that led to the
deadly drunk driving accident. Attorney Johns was released from
probation two-and-a-half years early, on May 14, 2007.
¶16 Attorney Johns began practicing law again. He is
currently a full-time solo practitioner.
¶17 In December 2010 a third party——revealed at oral
argument to be the Milwaukee Journal Sentinel——informed the OLR
of Attorney Johns' 2004 conviction. This proceeding followed.
¶18 The OLR brought two counts against Attorney Johns.
Count One alleged a violation of SCR 20:8.4(b) due to the
conduct resulting in Attorney Johns' 2004 conviction. Count Two
alleged a violation of SCR 21.15(5), as enforced via
SCR 20:8.4(f), because Attorney Johns failed to notify the clerk
of the supreme court and the OLR, in writing, of his felony
conviction in 2004. The OLR sought a 60-day suspension.
6
No. 2011AP2760-D
¶19 In his answer to the OLR complaint, Attorney Johns
denied that his conduct resulting in his 2004 conviction
reflected adversely on his honesty, trustworthiness, or fitness
as a lawyer in other respects so as to violate SCR 20:8.4(b).
Attorney Johns also denied that he had committed misconduct
under SCR 21.15(5); he admitted that he did not provide written
notice of the felony conviction, but explained that he and his
lawyer spoke with the OLR on the date of the conviction
regarding the possible impact of the conviction on his law
license.
¶20 On September 21, 2012, and after a disciplinary
hearing, the referee filed a report. The referee concluded that
Attorney Johns did not violate SCR 20:8.4(b). The referee wrote
that the "commission of a criminal act by a Wisconsin licensed
lawyer does not, per se, constitute professional misconduct."
Such a bright line approach, the referee wrote, "would preclude
each case from being carefully considered based on the
individual facts and circumstances surrounding each criminal
offense and how those facts reflected upon the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects." The
referee concluded that the OLR had not proven that
Attorney Johns' crime reflected adversely on his honesty,
trustworthiness, or fitness as a lawyer in other respects. The
referee wrote:
The evidence in this case clearly shows that the
crime committed by [Attorney Johns] was a once in a
lifetime aberration in his otherwise fine behavior.
Except for this one specific and tragic event,
7
No. 2011AP2760-D
[Attorney Johns] has led an exemplary personal and
professional life. There is no evidence that points
to even a hint of any other kind of personal or
professional misconduct. There have been no prior
reprimands. There is no evidence of any fraud,
deceit, dishonesty, cheating, client abuse, or
malpractice in any of his behavior. There is no other
criminal record.
[Attorney Johns] is a highly regarded and
contributing member of his community and of the legal
profession. He is a credit to the legal profession.
In my opinion, a sanction of law license suspension is
unwarranted. While it is true that the very long
delay in bringing the disciplinary proceedings [has]
given [Attorney Johns] years to accumulate his present
fine standing, the evidence is allowed and is very
impressive.
¶21 Thus, the referee recommended that the court dismiss
Count One's allegation of a violation under SCR 20:8.4(b).
¶22 As to Count Two, the referee concluded that
Attorney Johns violated SCR 21.15(5) by failing to send written
notice of his 2004 felony conviction to the OLR and to the
supreme court clerk. The referee wrote that although Attorney
Johns' and his lawyer's phone call with the OLR on the date of
the plea hearing in the criminal case might have provided actual
notice to the OLR, it was insufficient to comply with
SCR 21.15(5), which requires written notice to both the OLR and
the supreme court clerk.
¶23 As for discipline, the referee recommended a private
reprimand, "unless the Court should conclude that a public
reprimand is more appropriate in order to deter other Wisconsin
attorneys from also violating [SCR 21.15(5)]."
8
No. 2011AP2760-D
¶24 The OLR appeals the referee's report and
recommendation. The OLR makes five main points on appeal.
¶25 First, the OLR argues that the referee's
recommendation was inconsistent with Wisconsin precedent on
attorney discipline for homicide while driving drunk. In
support of this proposition, the OLR cites In re Disciplinary
Proceedings Against Stearn, 2004 WI 73, 272 Wis. 2d 141, 682
N.W.2d 326, in which the court granted Attorney Stearn's
petition for consensual license revocation under SCR 22.19 after
he was convicted of homicide by intoxicated use of a vehicle and
causing great bodily harm by intoxicated use of a vehicle.
Attorney Stearn received a 12-year prison sentence.
Attorney Stearn conceded that he could not successfully defend
against the OLR misconduct allegations, which included the
assertion that his convictions established conduct that
reflected adversely on his honesty, trustworthiness or fitness
as a lawyer in other respects, contrary to SCR 20:8.4(b).
¶26 Second, the OLR argues that this court has found a
nexus between a criminal act and a lawyer's fitness in cases
involving far less serious criminal convictions than that
present here. See Inglimo, 305 Wis. 2d 71, ¶¶49-55 (holding
that attorney's marijuana usage with and delivery to clients
reflected adversely on his fitness as a lawyer).
¶27 Third, the OLR notes that in other jurisdictions,
attorneys who have been convicted of vehicular homicide have
received suspensions ranging from 18 months to disbarment. See
In re Janklow, 709 N.W.2d 28 (S.D. 2006) (26-month suspension
9
No. 2011AP2760-D
for a manslaughter conviction after lawyer, who was not under
the influence of drugs or alcohol, ran a stop sign and collided
with another vehicle); State ex rel. Oklahoma Bar Ass'n v.
Wyatt, 32 P.3d 858 (Okla. 2001) (disbarment for a manslaughter
conviction resulting from drunk driving accident); Office of
Disciplinary Counsel v. Michaels, 527 N.E.2d 299 (Ohio 1988)
(18-month suspension following deadly drunk driving accident);
In re Morris, 397 P.2d 475 (N.M. 1964) (indefinite suspension
for involuntary manslaughter conviction resulting from drunk
driving accident; lawyer could apply for termination of
suspension after the later of one year following disciplinary
order, or upon completion of sentence, or upon being restored to
all civil rights); In re Hoare, 155 F.3d 937 (8th Cir. 1998)
(disbarment for an aggravated reckless homicide conviction
resulting from drunk driving accident).
¶28 Fourth, the OLR argues that on the facts of this case,
a 60-day suspension is appropriate. It points out that in In re
Disciplinary Proceedings Against Brandt, 2012 WI 8, 338
Wis. 2d 524, 808 N.W.2d 687, this court imposed a four-month
suspension on Attorney Brandt, consistent with the parties'
stipulation, after he received a felony conviction in Minnesota
of first-degree driving while intoxicated within ten years of
the first of three or more qualified prior impaired driving
incidents. The OLR also points out that, according to the
Washington Supreme Court, a suspension of some length of time
"is the appropriate sanction for every vehicular homicide." In
re Disciplinary Proceedings Against Curran, 801 P.2d 962, 974
10
No. 2011AP2760-D
(Wash. 1990). The OLR further claims that this court has
imposed significant suspensions for crimes far less serious than
homicide by use of a vehicle with a prohibited alcohol
concentration. See, e.g., In re Disciplinary Proceedings
Against Mross, 2003 WI 4, 259 Wis. 2d 8, 657 N.W.2d 342 (90-day
suspension for lawyer's unlawful sale of cigarettes to jail
inmates while visiting his clients in jail).
¶29 Fifth, and finally, the OLR argues that the referee
erred by admitting 21 letters from juveniles in the Lincoln
Hills School, a juvenile correctional institution in Wisconsin.
As a form of community service, Attorney Johns gave talks to
classes at the Lincoln Hills School concerning his personal
history. In the letters at issue, the students expressed
appreciation for Attorney Johns' time and message. The OLR
cites In re Disciplinary Proceedings Against Eisenberg, 117
Wis. 2d 332, 344 N.W.2d 169 (1984), in which this court held
that the referee erred by receiving into evidence 67 letters of
character reference by attorneys and others who did not testify
at the disciplinary hearing and whose statements as to
Attorney Eisenberg's character were not made under oath. Id. at
338-39.
¶30 We begin by discussing the alleged failure-to-notify
violation under SCR 21.15(5). The referee concluded that
Attorney Johns committed a failure-to-notify violation under
SCR 21.15(5). Although Attorney Johns did actually inform the
OLR of his conviction through his lawyer's off-the-record
telephone conversation with an OLR official during his plea
11
No. 2011AP2760-D
hearing, SCR 21.15(5) requires notification "in writing" to the
OLR and the clerk of the supreme court. Attorney Johns did not
satisfy this "in writing" requirement.
¶31 This was a violation of the most technical variety.
It is undisputed that, due to the telephone conversation between
Attorney Johns' lawyer and the OLR's deputy director on the day
of Attorney Johns' plea hearing, the OLR had actual knowledge of
the conviction from the day it was entered. Under the unique
facts of this case, a completely literal enforcement of
SCR 21.15(5) benefits no one and settles nothing. We therefore
dismiss this count.
¶32 We move now to the issue of whether Attorney Johns
violated SCR 20:8.4(b) through the misconduct leading to his
conviction for homicide by use of a vehicle with a prohibited
alcohol concentration. We agree with the referee that on the
facts of this case, the answer is no.
¶33 In answering this question, it is helpful to bear in
mind the purpose of disciplinary actions. The purpose of the
disciplinary system is not punishment or atonement, but to
determine whether misconduct as defined by our rules has
occurred and to what extent that misconduct indicates unfitness
to practice law. See In re Disciplinary Proceedings Against
Crandall, 2008 WI 112, ¶23, 314 Wis. 2d 33, 754 N.W.2d 501. No
one disputes that the facts of this case are tragic:
Attorney Johns drove drunk and killed his brother——a senseless
loss of life. This court will resist the impulse, however, to
12
No. 2011AP2760-D
assume that the unfortunate death of Attorney Johns' brother
necessarily reflects upon Attorney Johns' fitness as a lawyer.
¶34 Supreme Court Rule 20:8.4(b) requires us to answer
whether Attorney Johns' criminal act "reflects adversely" on
his: (1) honesty, (2) trustworthiness, or (3) "fitness as a
lawyer in other respects." We hold that Attorney Johns'
criminal act does not reflect adversely on the first two
factors, his honesty or trustworthiness. This was
Attorney Johns' first drunk-driving related conviction. He has
no other criminal record. He has been truthful about his
actions. He has never disclaimed responsibility for his
wrongdoing. He did not flee the scene of the accident; the
record shows that a responding officer observed him trying to
administer mouth-to-mouth resuscitation to his fatally wounded
brother. He gained nothing from his criminal action. Thus, the
record does not show that Attorney Johns' terrible decision to
drive drunk on the night in question belies a deep-seated
tendency toward dishonest or untrustworthy actions.
¶35 The question becomes, then, whether Attorney Johns'
criminal act reflects adversely on his "fitness as a lawyer in
other respects"; i.e., whether the act bears on a character
trait which, like honesty and trustworthiness, is essential to
the practice of law.
¶36 The ABA Comment [2] to SCR 20:8.4 provides some
guidance as to what crimes reflect adversely on fitness as a
lawyer. It states:
13
No. 2011AP2760-D
Although a lawyer is personally answerable to the
entire criminal law, a lawyer should be professionally
answerable only for offenses that indicate [a] lack of
those characteristics relevant to law practice.
Offenses involving violence, dishonesty, breach of
trust, or serious interference with the administration
of justice are in that category. A pattern of
repeated offenses, even ones of minor significance
when considered separately, can indicate indifference
to legal obligation.
¶37 We also note that in interpreting subsection (6) of
SCR 22.36 ("Reinstatement; removal of conditions"), we have
interpreted the term "fit" with the phrase "to practice law" 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. We believe these same concepts——preparedness,
competence, expertise, credibility——are useful here in
determining whether Attorney Johns' criminal act reflects
adversely on his "fitness as a lawyer in other respects."
SCR 20:8.4(b).
¶38 We have identified certain types of criminality as
particularly relevant to a person's fitness as a lawyer. For
example, we have held that a pattern of convictions "evinces a
serious lack of respect for the law and as such relate[s] to [a
lawyer's] 'fitness as a lawyer in other respects.' Attorneys
are officers of the court and should be leaders in their
communities and should set a good example for others." In re
14
No. 2011AP2760-D
Disciplinary Proceedings Against Brandt, 2009 WI 43, ¶42, 317
Wis. 2d 266, 766 N.W.2d 194 (discussing a lawyer's multiple OWI
convictions). We also have held that certain criminal conduct
is so revealing of character defects, and so undermines public
confidence in the legal profession, that it necessarily reflects
adversely on an attorney's fitness as a lawyer. See Inglimo,
305 Wis. 2d 71, ¶¶49-55 (lawyer's marijuana usage with clients
showed the clients that their lawyer had "a disregard for the
law" that "reflect[ed] adversely not only on the lawyer's
fitness, but on the profession as a whole"); see also In re
Disciplinary Proceedings Against Penn, 201 Wis. 2d 405, 406, 548
N.W.2d 526 (1996) (district attorney's illegal drug usage with
individuals subject to prosecution by his office damaged the
"public trust in the legal system to which the people of his
county elected him").
¶39 Employing the above principles here, we conclude that
Attorney Johns' criminal act does not reflect adversely on his
"fitness as a lawyer in other respects." SCR 20:8.4(b).
Attorney Johns' conviction is not part of a larger pattern of
criminal behavior that suggests indifference toward the law. He
has no other criminal history. The record does not suggest that
Attorney Johns' conviction has adversely affected his
professional relationships with judges, fellow lawyers, clients,
or other members of the legal system. Attorney Johns'
conviction does not call into question his ability to
competently and vigorously represent clients; we have no reason
to doubt the referee's finding that Attorney Johns is "a highly
15
No. 2011AP2760-D
regarded and contributing member of his community and of the
legal profession." Nor, we believe, should Attorney Johns'
criminal act diminish public confidence in the legal profession.
This case is far different from those in which an attorney
abused his or her professional status as a lawyer in committing
a criminal act. Attorney Johns violated no practice norms. He
harmed no clients. He did not benefit from his misconduct. He
has been arrested, convicted, sentenced, jailed, and supervised
on probation. He will forever have a heavy conscience regarding
this incident.
¶40 Considering all of the above, we do not believe that
Attorney Johns' isolated criminal act, even with its tragic
consequences, denotes a deficiency in honesty, trustworthiness,
or other character traits that are essential to the practice of
law.
¶41 As noted earlier, the OLR cites a variety of out-of-
state cases in an attempt to convince the court to find a
violation of SCR 20:8.4(b). The OLR waited until its reply
brief to first identify the case that it maintains is most
relevant to this case: In re Hoare, 155 F.3d 937 (8th Cir.
1998). The facts of Hoare are as follows. One early morning,
Attorney Hoare, drunk, drove his car the wrong way onto an
interstate highway in Illinois and collided with another
vehicle, causing that driver's death. Id. at 938.
Attorney Hoare was ultimately convicted of aggravated reckless
homicide. Id. at 939. A series of professional disciplinary
actions against Attorney Hoare followed. In an unpublished
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No. 2011AP2760-D
decision that is not available on Westlaw or Lexis and has not
been provided to us by the OLR, the Missouri Supreme Court
issued an order disbarring Attorney Hoare from the practice of
law in Missouri. Id. at 939, citing In re Michael Hoare, No.
78870 (Mo. S. Ct. Jul. 16, 1996). In an unpublished order that
is also not available on Westlaw or Lexis and has not been
provided to us by the OLR, the United States District Court for
the Eastern District of Missouri imposed the same discipline as
that imposed by the Missouri Supreme Court: disbarment. Id. at
940, citing In the Matter of Michael J. Hoare, No. 96-MC-187
(E.D. Mo. Mar. 11, 1997) (en banc). The Eighth Circuit
affirmed, noting that federal courts are "obliged to accord a
high level of deference to state court disbarment proceedings,"
and that "we cannot say that the district court abused its
discretion in concluding that the reciprocal discipline of
disbarment would not result in grave injustice." Id. at 940-42.
¶42 We do not find Hoare particularly enlightening. The
Eighth Circuit in Hoare was operating under a constrained
standard of review of a 1996 Missouri Supreme Court order that
is unavailable to us and that relied upon a Missouri Supreme
Court Rule that the OLR neither quotes nor substantively
discusses. In the instant case, we enjoy a de novo standard of
review over the legal issues presented, and we have the benefit
of a fully developed record. For the reasons set forth above,
we hold that on the particular facts of record, Attorney Johns'
criminal act does not reflect adversely on his honesty,
17
No. 2011AP2760-D
trustworthiness, or fitness as a lawyer in other respects,
despite the act's tragic consequences.
¶43 We move now to the third issue raised in the parties'
briefs: whether the referee erred in admitting 21 letters from
juveniles in the Lincoln Hills School (a juvenile correctional
institution) expressing appreciation to Attorney Johns for a
talk he gave them about his life experiences. Here is a
representative example of one of the letters:
Dear Mr. Johns,
I would like to thank you for taking the time out
of your day to come and speak to us. I could see
myself in you. I did get some things out of your
story. One of them . . . is don't drink, and another
is don't drink and drive under [any] circumstances. I
also got that change is possible and it do[es] exist.
I admire and respect you. Thank you again.
¶44 In its brief-in-chief, the OLR argued that these
letters constituted inadmissible hearsay. Attorney Johns
disputed this assertion in his response brief. Attorney Johns
further argued that, even if these letters should not have been
admitted, their admission into evidence was harmless error
because the record contains abundant other uncontested evidence
of his good character.
¶45 The OLR ignores the topic in its reply brief. Neither
party mentioned the issue at oral argument. We take this lack
of reply by the OLR as a concession that the letters were
admissible. See State ex rel. Blank v. Gramling, 219 Wis. 196,
199, 262 N.W. 614 (1935).
18
No. 2011AP2760-D
¶46 For the reasons stated above, we accept the referee's
conclusion that Attorney Johns' conduct resulting in his 2004
conviction does not reflect adversely on his honesty,
trustworthiness, or fitness as a lawyer in other respects so as
to violate SCR 20:8.4(b). We depart from the referee's
conclusion that Attorney Johns' committed a failure-to-report
violation under SCR 21.15(5); we conclude that Attorney Johns'
violation of SCR 21.15(5) was too technical to justify the
imposition of legal consequences. Accordingly, we dismiss the
complaint.
¶47 IT IS ORDERED that the disciplinary complaint filed
against Daniel W. Johns, Jr., is dismissed. No costs.
¶48 ANN WALSH BRADLEY, J., did not participate.
19
No. 2011AP2760-D.ssa
¶49 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The OLR
charged Attorney Johns with two violations of the Rules of
Professional Conduct for Attorneys. I conclude that the two
violations were proved, but I would not impose any discipline.
¶50 Attorney Johns agrees (as he must) that he violated
the Rules by failing to notify the clerk of the supreme court
and OLR in writing of his felony conviction. Attorney Johns
disputes whether his conviction of vehicular homicide violated
the Rules.
¶51 The referee agreed with Attorney Johns that he
violated only one provision of the Rules of Professional Conduct
for Attorneys, namely failing to notify the clerk of the supreme
court and the OLR in writing of his felony conviction.1
¶52 The per curiam opinion concludes that Attorney Johns'
conduct does not violate the Rules in either respect.
¶53 I disagree with the court's disposition of the present
case and address the two charges in parts A and B of this
dissent.
¶54 Because this case, along with two other pending cases
and an open rules petition hearing and open rules petition
conference, raise important concerns about the present lawyer
regulatory system, I write stating the requests previously made
for the court to initiate a study of the lawyer regulatory
1
The referee concluded that Johns did not violate the Rules
by his felony conviction of vehicular homicide of his brother
because the conviction does not reflect on Attorney Johns'
honesty, trustworthiness, or fitness as a lawyer.
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system. The lawyer regulatory system now in effect was
instituted about 15 years ago. It is time to examine it to
determine whether revisions are needed. The director of the
Office of Lawyer Regulation agrees. I discuss this issue in
Part C of this dissent.
A
¶55 With regard to the notification violation, Attorney
Johns did not notify the OLR and the clerk of the Supreme Court
of his felony conviction in writing, as SCR 21.15(5) requires.
He did speak with a named employee at OLR. OLR does not deny
that this oral communication occurred. Attorney Johns does not
claim he spoke with or wrote the clerk of the Supreme Court
about his conviction.
¶56 The rule is straightforward: It requires a written
notice to two offices. A writing constitutes official notice to
the OLR and the court; writing is key to the reporting
requirement and attorney discipline. A written communication
avoids evidentiary proceedings to determine who said what to
whom and when.
¶57 Furthermore, the rule requires communication to both
the OLR and the clerk's office. Attorney Johns failed to notify
the clerk's office in any way. No one asserts he complied with
notification to the clerk's office.
¶58 The per curiam opinion characterizes the present case
as a technical violation. I do not know what a "technical
violation" means. Attorney Johns' notification to OLR was not
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in writing and no notification was made to the clerk of the
supreme court.
¶59 The court's conclusion that Attorney Johns did not
violate SCR 21.15(5) is clearly contrary to the stipulated facts
and the plain, unambiguous text of the Rules.
¶60 The court has discretion whether to impose discipline.
SCR 21.16. In light of the circumstances of the case, including
Attorney Johns' stellar record for the last decade, I would not
impose any discipline for this violation.
B
¶61 The felony conviction presents a more difficult issue.
The commission of a criminal act by a Wisconsin-licensed lawyer
does not in and of itself automatically constitute professional
misconduct. The facts and circumstances of an offense must be
considered to determine whether it reflects on the lawyer's
honesty, trustworthiness, or fitness as a lawyer. SCR
20:8.4(b).
¶62 This felony drunk driving conviction was apparently
Attorney Johns' only drunk driving offense before or after the
homicide. Nothing in the record before us indicates he has an
alcohol-related problem. The district attorney's office had
discretion whether to prosecute Attorney Johns. It prosecuted.
The trial court had discretion in sentencing Attorney Johns for
the homicide. It imposed jail time and probation.
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¶63 As the per curiam opinion explains, drunk driving has
been viewed differently by different courts in attorney
discipline cases.2
¶64 Drunk driving is a major public safety issue in
Wisconsin and across the country. According to the National
Highway Traffic Safety Administration, in 2012 an average of one
alcohol-impaired driving fatality occurred every 51 minutes.3 In
2012, 10,322 people were killed in alcohol-impaired driving
crashes.4 All drivers are——or should be held to be——aware of the
dangers of drunk driving. That drunk driving may be prosecuted
as a crime is also common knowledge.
¶65 Attorney Johns was engaged in an evening of drinking
with his family. His blood alcohol level tested way over the
legal limit. He pled guilty to one count of homicide by use of
a vehicle with a prohibited alcohol concentration. The one-
vehicle accident resulting in the death of Attorney Johns'
passenger/brother was a tragedy for the entire family. The
tragedy did not end that night. The tragic aftermath includes a
2
See also Alexandra Sorota & Shelley Lambert, Driving on
the Wrong Side of the Road: How Lawyers are Sanctioned for
Vehicular Homicide in New York and the District of Columbia, 15
Geo. J. Legal Ethics 865 (2002); Rachna K. Dhanda, When
Attorneys Become Convicted Felons: The Question of Discipline by
the Bar, 8 Geo. J. Legal Ethics 723 (1995).
3
National Highway Traffic Safety Administration, U.S.
Department of Transportation, DOT HS 811 870, Traffic Safety
Facts: 2012 Data, available at http://www-
nrd.nhtsa.dot.gov/Pubs/811870.pdf (last visited March 24, 2014).
4
Id.
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criminal prosecution, a felony conviction, jail time, probation,
and this disciplinary action.
¶66 This case has to be considered, however, in the
context of the scourge of drunk driving in our society.
Although the totality of the circumstances of the isolated
homicide in the instant case presents a very close discipline
case——and my sympathies are with Attorney Johns and his family——
I would hold that the felony conviction constituted a violation
of the Rules.
¶67 I would not, however, impose any discipline for this
violation. The court has discretion whether to impose
discipline. SCR 21.16. In light of the circumstances of the
case, including Attorney Johns' stellar record for the last
decade, discipline is not warranted.
C
¶68 This case, along with the two Osicka cases,5 the Kratz6
case, and rule petitions recently filed7 and hearings on filed
5
OLR v. Osicka, 2014 WI 33, ___ Wis. 2d ___, ___
N.W.2d ___, and OLR v. Osicka, 2014 WI 34, ___ Wis. 2d ___, ___
N.W.2d ___, mandated of even date. Although Justice Prosser
joined in prior cases disciplining Attorney Osicka, Justice
Prosser dissents, asserting that OLR is "piling up legal costs
that it expects Osicka to pay. . . . These prosecutions raise
questions about how OLR uses its limited resources to protect
the public interest——questions about its priorities. Because
the answers to questions of this sort are seldom addressed, I
feel compelled to respectfully dissent." Osicka, 2014 WI 33,
¶___ (Prosser, J., dissenting).
6
OLR v. Kratz, 2014 WI 31, ___ Wis. 2d ___, ___ N.W.2d ___,
mandated of even date.
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rules petitions involving the OLR, raises broader issues than
those posed by these and other individual cases.
¶69 For example, the very prosecution of this case 10
years after the incident seems to have troubled the referee and
is troubling the court, as is the wisdom of OLR's appeal.
Delays in initiating and completing discipline cases are also
evident in Osicka and Kratz. Other issues raised include OLR's
discretion in charging, dismissing charges, and diversion;
whether and what consideration is given in lawyer discipline to
OLR's scarce resources; the extent to which the OLR should
consider mercy, forgiveness, and the wishes of the victims;
whether respondent lawyers should be able to appear before the
Preliminary Review Committee; and whether the Preliminary Review
Committee should be disbanded inasmuch as apparently over 90% of
the OLR's recommendations are accepted.
¶70 The Kratz case raised the issue of the role of
partisan politics and media publicity in discipline proceedings,
as Justice Prosser's dissent points out. Members of the Court
have also raised the question of the wisdom of changing the
rules to allow plea bargaining. These are only some of the
significant and troubling issues illustrated in these cases and
7
See OLR's Board of Administrative Oversight and State Bar
petition (Rule Petition 13-04) to amend the rules relating to
referees in the lawyer regulation system; OLR's Board of
Administrative Oversight and State Bar petition (Rule Petition
13-06) relating to stipulations in lawyer disciplinary
proceedings; and OLR's Board of Administrative Oversight
petition (Rule Petition 13-12) relating to public notice of
formal investigations.
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raised in rule petitions and the hearings on recent rule
petitions.
¶71 On October 25, 2013, Keith Sellen appeared advocating
a rule petition regarding lawyer discipline. I suggested to him
that an impartial, objective review of OLR practices and
procedures should be conducted.8 Fifteen years have elapsed
since the OLR system was instituted. Several anomalies and
proposed amendments have been brought to the court's attention.
I believe it is time for a review rather than piecemeal
adjustments at this time. Keith Sellen, director of the OLR,
agreed with the proposal for a review. Justices Ann Walsh
Bradley, N. Patrick Crooks, and David T. Prosser expressed
interest in and support for such a proposal at the October 2013
open rules petition conference.
¶72 Several pending rule petitions requesting changes in
OLR's practices and procedures were the result of a review
committee that the chair of the OLR Board of Administrative
Oversight created at my suggestion.
8
For a provocative, different view of state lawyer
discipline systems (which are now modeled on criminal
prosecutions), see Jenifer Gerarda Brown & Liana G.T. Wolf, The
Paradox and Promise of Restorative Attorney Discipline, 12
Nevada L. J. 253 (2012). The authors suggest new therapeutic
approaches including diversionary programs, deliberation and
decision making by a diverse group of stakeholders, increased
victim and public participation, and discussions that focus on
repairing the damage caused by the offending attorney to build
trust between attorneys and their clients, to foster
professional conduct, to prevent ethical misconduct, to improve
the morale of practicing lawyers, and to protect the public.
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No. 2011AP2760-D.ssa
¶73 Instead of examining and adopting these proposals
piecemeal, I advocated dealing with the subject matter of these
rule petitions as well as other issues relating to OLR by an
objective review of all OLR practices and procedures. A review
by persons knowledgeable in and working in other state lawyer
discipline systems might be a good first step. Other justices
proposed different tacks, including appointing a committee of
diverse stakeholders to determine the nature and course of the
review. I was (and am) open to taking a different or broader
approach than I originally explored.
¶74 The court has not resolved a proposal for such a
review of the OLR disciplinary system. Some members of the
court appeared to take the view that any such proposal was not
germane to the subject of the petitions; that any such proposal
was not itself a rules petition; and that consequently any
proposal could not be discussed at an open rules petition
conference without the court first authorizing an open
discussion in closed conference.
¶75 I intend to continue to seek an open conference in
which we can discuss instituting an impartial, objective review
of OLR practices and procedures. Such a review is germane to
all the pending rules petitions. In any event, I can and shall,
if need be, draft a proposal in rules petition format if that's
what it takes.
¶76 This matter should be discussed by the court in open
conference, not behind closed doors. Lawyer discipline is of
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No. 2011AP2760-D.ssa
great importance to the court, the lawyers in the state, and the
public.
* * * *
¶77 For the reasons set forth, I do not join the per
curiam opinion, and I write to urge an impartial, objective
review of our lawyer discipline system.
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