Office of Lawyer Regulation v. Boris Ouchakof

2013 WI 48SUPREME COURT OF WISCONSIN
CASE NO.: 2002AP875-D
COMPLETE TITLE:
In the Matter of Disciplinary Proceedings
Against Boris Ouchakof, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Boris Ouchakof,
Respondent.
REINSTATEMENT PROCEEDINGS FOR OUCHAKOF
OPINION FILED: May 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
2013 WI 48NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2002AP875-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Boris Ouchakof, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant, MAY 29, 2013
v. Diane M. Fremgen
Clerk of Supreme Court
Boris Ouchakof,
Respondent.
ATTORNEY reinstatement proceeding. Reinstatement granted
upon conditions.
¶1 PER CURIAM. We review the report and recommendation
of the referee, Attorney Lisa C. Goldman, that the license of
Attorney Boris Ouchakof to practice law in Wisconsin should be
reinstated with certain specified conditions.1 After fully
1
Because neither party appealed from the referee's report
and recommendation, our review proceeds under SCR 22.33(3),
which provides that "[i]f 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."
No. 2002AP875-D
reviewing this matter, we agree with the referee that Attorney
Ouchakof's license should be reinstated and that a condition
should be placed upon his practice of law in this state. We
modify the referee's recommended condition slightly in order to
provide clarification of the scope of the required monitoring.
We also determine that Attorney Ouchakof should be required to
pay the costs of this reinstatement proceeding, which were
$1,483.43 as of December 13, 2012.
¶2 The standards that apply to all petitions seeking
reinstatement after a disciplinary suspension or revocation are
set forth in SCR 22.31(1).2 In particular, the petitioning
attorney must demonstrate by clear, satisfactory, and convincing
evidence that he or she has the moral character necessary to
practice law in this state, that his or her resumption of the
2
SCR 22.31(1) states:
The petitioner has the burden of demonstrating,
by clear, satisfactory, and convincing evidence, all
of the following:
(a) That he or she has the moral character to
practice law in Wisconsin.
(b) That his or her resumption of the practice of
law will not be detrimental to the administration of
justice or subversive of the public interest.
(c) That his or her representations in the
petition, including the representations required by
SCR 22.29(4)(a) to [(4m)] and 22.29(5), are
substantiated.
(d) That he or she has complied fully with the
terms of the order of suspension or revocation and
with the requirements of SCR 22.26.
2
No. 2002AP875-D
practice of law will not be detrimental to the administration of
justice or subversive of the public interest, and that the
attorney has complied fully with the terms of the suspension or
revocation order and the requirements of SCR 22.26. In
addition, SCR 22.31(1)(c) incorporates the statements that a
petition for reinstatement must contain pursuant to
SCR 22.29(4)(a)-[(4m)].3 Thus, the petitioning attorney must
3
SCR 22.29(4)(a) through (4m) provides that a petition for
reinstatement shall show all of the following:
(a) The petitioner desires to have the
petitioner's license reinstated.
(b) The petitioner has not practiced law during
the period of suspension or revocation.
(c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will continue to comply with them until the
petitioner's license is reinstated.
(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.
(e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of
and attitude toward the standards that are imposed
upon members of the bar and will act in conformity
with the standards.
(g) The petitioner can safely be recommended to
the legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.
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No. 2002AP875-D
demonstrate that the required representations in the
reinstatement petition are substantiated.
¶3 As set forth in our prior disciplinary decision, In re
Disciplinary Proceedings Against Ouchakof, 2002 WI 122, 257
Wis. 2d 1, 653 N.W.2d 108 (Ouchakof I), Attorney Ouchakof was
admitted to the practice of law in Wisconsin in September 1989.
He thereafter practiced in Madison. From 1992 to 1998 he was
employed as an associate attorney with a Madison law firm. He
then opened his own law office.
¶4 In June 2000 Attorney Ouchakof's license was
administratively suspended due to his failure to comply with the
mandatory reporting requirements for continuing legal education
(CLE). His license has not returned to active status since that
time.
¶5 Attorney Ouchakof was not the subject of any
disciplinary proceeding until March 2002, when the Office of
(h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license
if reinstated.
(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.
(4m) The petitioner has made restitution to or
settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to
the Wisconsin lawyers' fund for client protection for
all payments made from that fund, or, if not, the
petitioner's explanation of the failure or inability
to do so.
4
No. 2002AP875-D
Lawyer Regulation (OLR) filed a disciplinary complaint that
charged Attorney Ouchakof with 41 counts of professional
misconduct arising out of 14 separate client matters and his
practice of law during an administrative suspension. In
addition to the counts charged in the complaint, the OLR was
also investigating an additional 12 counts of potential
misconduct arising out of another four client grievances.
¶6 The misconduct described in the complaint included
allegations that while employed by the law firm, Attorney
Ouchakof secretly charged and personally accepted fees that he
did not remit or even disclose to his employer, contrary to his
employment contract. He was also alleged, inter alia, to have
failed to act with reasonable diligence and promptness, to have
failed to comply promptly with clients' reasonable requests for
information, to have failed to communicate the basis or rate of
his fee, to have failed to hold in trust property in which
another person had an interest, to have failed to protect his
clients' interests upon the termination of his representation,
and to have failed to cooperate with and provide relevant
information to the OLR.
¶7 After the filing of the OLR's complaint, Attorney
Ouchakof filed a petition for the voluntary revocation of his
license to practice law in Wisconsin. His petition stated that
he could not successfully defend against the misconduct
allegations set forth in the complaint or the misconduct
allegations which the OLR was still investigating. This court
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No. 2002AP875-D
granted the petition and revoked his license in November 2002.
Ouchakof I, 257 Wis. 2d 1, ¶10.4
¶8 In December 2011 Attorney Ouchakof filed a petition
for reinstatement. The OLR's response to the petition stated
that it did not oppose his reinstatement. The referee then held
a public hearing on the reinstatement petition and filed a
report and recommendation with this court.
¶9 The referee found that following the revocation of his
license, Attorney Ouchakof maintained steady employment
summarizing medical records for Becker Law Offices. The referee
further found that Attorney Ouchakof's work for Becker Law
Offices did not constitute the practice of law or work that is
otherwise prohibited by SCR 22.26(2). Attorney Ouchakof's
employment with Becker Law Offices terminated in November 2011
for reasons unrelated to his job performance. He has since been
seeking other employment. In addition to his employment at the
law firm, Attorney Ouchakof has also for many years been
involved with coaching a club soccer team in Madison and has
extensively volunteered his time at his church, both of which
indicate a genuine desire to contribute to the community and to
live a life characterized by positive conduct. The referee
noted that the record contained a number of letters from members
of the legal community, including individuals associated with
4
We also ordered Attorney Ouchakof to pay the costs of that
disciplinary proceeding. The OLR's response to Attorney
Ouchakof's petition for reinstatement advises that he satisfied
the cost judgment in November 2003.
6
No. 2002AP875-D
Becker Law Offices, who attested to Attorney Ouchakof's
character and trustworthiness, viewed favorably Attorney
Ouchakof's work, and supported his reinstatement to the practice
of law. No testimony or letters in opposition to his
reinstatement were received.
¶10 The referee commented at some length on the fact that
Attorney Ouchakof had testified that during the events
underlying the revocation of his license he had been suffering
from a major depression and that he has continued to be treated
for depression. The referee noted that the 2002 disciplinary
proceeding did not involve a determination of any medical
incapacity. Nonetheless, she indicated that, given Attorney
Ouchakof's history of depression, he needed to show that he is
treating his depression such that he will be able, if
reinstated, to meet the obligations of practicing law in accord
with the ethical standards adopted by this court. The referee
concluded that Attorney Ouchakof had made such a showing. She
accepted Attorney Ouchakof's testimony that he has continued to
take the medication prescribed by his treatment provider to keep
his depression under control.
¶11 Accordingly, the referee determined that through his
written submissions and during the public hearing, Attorney
Ouchakof had satisfied all of the requirements for reinstatement
by clear, satisfactory, and convincing evidence. The referee
concluded that Attorney Ouchakof may now safely be recommended
to return to the practice of law in this state.
7
No. 2002AP875-D
¶12 The referee, however, expressed concern that Attorney
Ouchakof may require some assistance to ensure that his
depression does not derail his reintegration into the practice
of law. In particular, the referee was concerned by the fact
that Attorney Ouchakof had ceased counseling several years ago
when his counselor had moved away from the area because the
counselor had not discharged him at that time from the need for
any further counseling. The referee therefore recommended as a
condition of reinstatement that the court require Attorney
Ouchakof to enter into a monitoring contract with the Wisconsin
Lawyers Assistance Program (WisLAP) to monitor his treatment for
depression. The referee indicated that such monitoring would be
important during the time following Attorney Ouchakof's
reinstatement, but did not indicate how long she thought such
monitoring should continue.
¶13 We review referee reports in reinstatement proceedings
under standards of review similar to those we use for reviewing
referee reports in disciplinary proceedings. We do not overturn
a referee's findings of fact unless they are clearly erroneous.
On the other hand, we review a referee's legal conclusions,
including whether the attorney has satisfied the criteria for
reinstatement, on a de novo basis. In re Disciplinary
Proceedings Against Jennings, 2011 WI 45, ¶39, 334 Wis. 2d 335,
801 N.W.2d 304; In re Disciplinary Proceedings Against Gral,
2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168.
¶14 Neither party has challenged any of the referee's
findings of fact or legal conclusions about Attorney Ouchakof's
8
No. 2002AP875-D
compliance with the standards for reinstatement. Our own review
of the matter leads us to accept the referee's findings of fact.
Those findings show that for nearly all of the period of
revocation Attorney Ouchakof has maintained steady employment,
has conducted himself in an exemplary manner, and has
demonstrated the required competence and learning in the law.
We therefore agree with the referee's legal conclusion that
Attorney Ouchakof has satisfied the requirements for the
reinstatement of his license to practice law in this state by
clear, satisfactory, and convincing evidence.
¶15 We further agree with the referee that in light of
Attorney Ouchakof's history of depression, it is appropriate to
impose a condition on his practice of law following his
reinstatement. We modify and clarify slightly the referee's
recommendation in this regard. We direct Attorney Ouchakof to
enter into an agreement with WisLAP for the purpose of
monitoring his compliance with the recommendations of his health
care providers regarding his depression. The duration of this
condition and his monitoring agreement with WisLAP should be a
period of one year from the date of his reinstatement. We
impose this condition not as a punishment or sanction on
Attorney Ouchakof, but rather out of concern for ensuring his
successful return to the practice of law, with all of its joys
and stresses.
¶16 Finally, we turn to the issue of costs. This court's
general policy in reinstatement proceedings, as in disciplinary
proceedings, is to require the attorney who is the subject of
9
No. 2002AP875-D
those proceedings to pay the full costs of the reinstatement
proceeding. The OLR's statement of costs indicates that the
costs of this proceeding, as of December 13, 2012, were
$1,483.43, against which Attorney Ouchakof's initial $200
deposit must be applied. Attorney Ouchakof has not filed an
objection to the OLR's statement of costs, and we perceive no
basis to depart from our general policy in this matter.
Accordingly, we will order Attorney Ouchakof to pay the full
remaining costs of these proceedings.
¶17 IT IS ORDERED that the petition for reinstatement of
the license of Boris Ouchakof to practice law in Wisconsin is
granted, effective the date of this order.
¶18 IT IS FURTHER ORDERED that, for a period of one year
from the date of this reinstatement order, Boris Ouchakof's
license to practice law in Wisconsin shall be subject to the
following condition: Boris Ouchakof shall enter into and comply
with an agreement with the Wisconsin Lawyers Assistance Program
for the purpose of monitoring his compliance with the
recommendations of his health care providers regarding his
depression.
¶19 IT IS FURTHER ORDERED that within 90 days of the date
of this order, Boris Ouchakof shall pay to the Office of Lawyer
Regulation all outstanding costs of this proceeding.
¶20 IT IS FURTHER ORDERED that compliance with all of the
terms of this order remains a condition of Boris Ouchakof's
license to practice law in Wisconsin.
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No. 2002AP875-D
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