David E. Hammer v. Board of Bar Examiners

2020 WI 59SUPREME COURT OF WISCONSIN
CASE NO.: 2019AP1974-BA
COMPLETE TITLE: In the Matter of the Bar Admission of David E.
Hammer:
David E. Hammer,
Petitioner,
v.
Board of Bar Examiners,
Respondent.
BAR ADMISSION OF DAVID E. HAMMER
OPINION FILED: June 25, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs filed by David E.
Hammer, Tampa, Florida. There was an oral argument by David E.
Hammer.
For the respondent, there was a brief filed by Jacquelynn
B. Rothstein, Director and Legal Counsel. There was an oral
argument by Jacquelynn B. Rothstein.
2020 WI 59NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2019AP1974-BA
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Bar Admission
of David E. Hammer:
David E. Hammer, FILED
Petitioner, JUN 25, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Board of Bar Examiners,
Respondent.
Review of Board of Bar Examiners' decision. Decision
affirmed.
¶1 PER CURIAM. This is a review, pursuant to Supreme
Court Rule (SCR) 40.08(7), of a final decision of the Board of
Bar Examiners (Board) declining to certify that the petitioner,
David E. Hammer, 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 the
fact that Mr. Hammer, who was a licensed Florida lawyer from
2006-2011, was disbarred in Florida for trust account violations
and misappropriation of client funds.
No. 2019AP1974-BA
¶2 Mr. Hammer resides in Florida. He graduated from the
University of Florida Levin College of Law in 2005 and completed
an LL.M. in Taxation in 2006. He was admitted to the Florida
bar on May 19, 2006. From his admission in May 2006 until his
law license was suspended on August 23, 2010, Mr. Hammer had
what he describes as "an ill-advised solo practice" in Florida,
built around a single client group: the family and friends of
Paul Bilzerian and their companies.1 As relevant here, in 2001,
long before Mr. Hammer ever worked for the Bilzerian client
group, a federal district court issued a sweeping injunction
limiting Bilzerian's access to the courts, in an effort to stem
Bilzerian's frivolous court filings (2001 Injunction). The 2001
Injunction provides:
Paul A. Bilzerian, his agents, servants, employees and
attorneys, and those persons in active concert or
participation with them, who receive actual notice of
this Order by personal service or otherwise, are
prohibited from filing or causing the filing of any
complaint, proceeding or motion in the United States
Bankruptcy Court for the Middle District of Florida,
or from commencing or otherwise causing the
commencement of any proceedings in any court, other
than in this Court or in appeals of this Court's
Orders to the United States Court of Appeals for the
District of Columbia, without prior application to and
approval of this Court . . ..
1 Bilzerian was convicted of securities fraud and conspiracy
to defraud the United States in 1989. United States v.
Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (affirming conviction).
The Securities and Exchange Commission then filed a civil suit
against him in the summer of 1989 and obtained a judgment for
approximately $62 million. S.E.C. v. Bilzerian, 29 F.3d 689(D.C. Cir. 1994) (affirming judgment).
2
No. 2019AP1974-BA
Mr. Hammer acknowledges that he received actual notice of the
2001 Injunction in December 2006.
¶3 We focus on the Board's primary reason for declining
to certify Mr. Hammer. On August 23, 2010, four years after his
admission to practice law, the Supreme Court of Florida issued
an emergency suspension against Mr. Hammer's law license,
alleging that he had misappropriated client trust funds. A
formal disciplinary complaint followed. Eventually, Mr. Hammer
stipulated that in November 2009, Bilzerian had directed that
certain outstanding invoices and cost reimbursements not be paid
to Mr. Hammer. Mr. Hammer believed these amounts were valid and
owed to him. At the time, Mr. Hammer had access to funds in a
trust account belonging to another Bilzerian-related entity. In
January 2010, Mr. Hammer began taking money from that trust
account for his own personal use. In May 2010, the client
requested the money held in trust. By then, the trust fund was
approximately $27,000 short of funds. To replace the missing
client funds, Mr. Hammer accessed funds from another account to
which he was a signatory, paying himself director fees and other
amounts.
¶4 On August 30, 2011, the Florida Supreme Court issued
an order disbarring Mr. Hammer, nunc pro tunc to September 22,
2010,
3
No. 2019AP1974-BA
for misappropriating client funds.2 Eventually, Mr. Hammer
distanced himself from the Bilzerian client group, started a
business, regained financial stability, and became chief
information officer of Elevant, an entity that licenses a case
management software program.
¶5 On January 1, 2018, Mr. Hammer applied for admission
to the Wisconsin bar. In February 2018, he took and
subsequently passed the Wisconsin bar exam. On January 15,
2019, the Board advised Mr. Hammer that his bar application was
at risk of being denied on character and fitness grounds.
Mr. Hammer, by counsel, requested a hearing and in May 2019,
Mr. Hammer also voluntarily commenced an ethics tutorial with
Wisconsin Attorney Dean R. Dietrich.
¶6 On August 2, 2019, the Board conducted a hearing at
which Mr. Hammer appeared by counsel and testified. The Board
also heard testimony from Mr. Hammer's prospective employers,
who advised the Board that they will employ Mr. Hammer as an
attorney if he is admitted to the Wisconsin bar. Attorney
Meanwhile, on January 21, 2011, Mr. Hammer was publicly
2
reprimanded by the Florida Supreme Court for actions in both
state and bankruptcy courts that he knew or should have known
were not meritorious but merely disruptive to the tribunals.
Board Order, ¶12.
On March 31, 2011, the Florida Supreme Court further
suspended Mr. Hammer's law license for 91 days, concurrent with
his underlying suspension in the misappropriation matter, based
on Mr. Hammer's failure to demonstrate that he had notified
clients, opposing counsel, and tribunals of his license
suspension. Board Order, ¶13.
4
No. 2019AP1974-BA
Dietrich testified in support of Mr. Hammer's character and
fitness to practice law in Wisconsin.
¶7 On September 19, 2019, the Board issued an adverse
decision concluding that Mr. Hammer had failed to demonstrate to
the Board's satisfaction that he has the necessary character and
fitness to practice law in Wisconsin. The Board cited Mr.
Hammer's Florida disbarment; abuse of process; extensive traffic
record; and its conclusion that Mr. Hammer failed to demonstrate
significant rehabilitation. The Board added that Mr. Hammer has
not reapplied to the Florida bar.
¶8 This petition followed. Mr. Hammer asks this court to
reverse the Board's adverse decision and permit him to become a
member of the Wisconsin bar. He indicates that he would accept
conditions on his law practice. In his initial brief Mr. Hammer
presents three issues:
(1) Whether Hammer satisfies the character and fitness
requirements of SCR 40.06, as interpreted by this
Court's prior decisions, or Hammer should be forever
banned from practicing law in the State of Wisconsin;
(2) Whether the conclusions of the [Board] that Hammer
does not satisfy the requirements of SCR 40.06 are
mere pretext for unconstitutional discrimination
against a resident of Florida; and
(3) Whether the [Board] committed clear error in
reaching certain Findings of Fact, based on the record
evidence.
¶9 This court has the ultimate responsibility for
admission to the Wisconsin bar. In re Bar Admission of Rippl,
2002 WI 15, ¶16, 250 Wis. 2d 519, 639 N.W.2d 553. When, as
here, we review an adverse determination, the court adopts the
5
No. 2019AP1974-BA
Board's findings of fact that are not clearly erroneous. Id.The court then determines, de novo, whether the Board's
conclusions of law, based on the non-erroneous facts, are
proper. Id. When conducting our de novo review, we, like the
Board, use the guidelines established in Bar Admission Rules
(BA) 6.01-6.03.3
¶10 Supreme Court Rule 40.06(1)4 requires that applicants
for bar admission establish good moral character and fitness to
practice law. The burden rests with the applicant to establish
character and fitness to the satisfaction of the Board. See
SCR 40.06(3) and SCR 40.07. Bar Admission Rule 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." Bar Admission
Rule 6.02 provides that in determining whether an applicant
possesses the necessary character and fitness to practice law,
12 factors constitute "cause for further inquiry." In assigning
weight and significance to these 12 factors the Board is to
The Appendix to SCR ch. 40 contains the Board's rules that
3
provide additional guidance to the Board and to applicants.
4 SCR 40.06(1) provides:
An applicant for bar admission shall establish
good moral character and fitness to practice law. The
purpose of this requirement is to limit admission to
those applicants found to have the qualities of
character and fitness needed to assure to a reasonable
degree of certainty the integrity and the competence
of services performed for clients and the maintenance
of high standards in the administration of justice.
6
No. 2019AP1974-BA
consider additional information set forth in SCR ch. 40 App., BA
6.03.5
¶11 It is undisputed that the Supreme Court of Florida
disbarred Mr. Hammer in 2011. Supreme Court Rule 40.06(4)
provides that suspension or revocation in another jurisdiction
is a sufficient basis for denial of certification.6 Arguably,
this is the end of our inquiry. However, neither party
considered this rule dispositive so we address the parties'
arguments.
¶12 We begin by evaluating whether the factual findings
underlying the Board's decision are clearly erroneous. Mr.
The Board considers the 12 factors that constitute cause
5
for further inquiry in light of: (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. SCR ch. 40 App.,
BA 6.03.
6 SCR 40.06(4) provides:
The board shall not certify an applicant while an
attorney disciplinary matter against the applicant is
pending or the applicant is certified by the
department of workforce development as delinquent in
making court-ordered payments of support or failing to
comply with a subpoena or warrant, as those terms are
defined in SCR 11.04(1). If an applicant's license to
practice law in another jurisdiction is suspended or
revoked for reasons related to professional
responsibility at the time the application is filed or
at any time that the application is pending, the
suspension or revocation is a sufficient basis for
denial of certification.
7
No. 2019AP1974-BA
Hammer takes issue with many of the Board's factual findings but
ultimately acknowledges that none of the alleged factual
discrepancies would have altered the Board's decision. Hammer
Br. at 34, fn. 2. Several of his objections can be broadly
characterized as relating to imprecise rhetoric used by the
Board to describe his past conduct. These include:
 An objection to the Board's finding that there were
companies from whom Mr. Hammer "converted money. . . ."
Board Order, ¶14 (emphasis added). Mr. Hammer says there
was never a finding that he "converted" money.
 An objection to the Board's statement that "[Hammer] was
also a signatory on another account, [owned by Hammer's]
client . . .." Board Order, ¶7. Mr. Hammer clarifies he
did not take the money used to reimburse another client
from a client's account.
 An objection to the Board's statement that in March 2011 he
was suspended for failure to notify clients, opposing
counsel, and tribunals of a license suspension. Board
Order, ¶13. Mr. Hammer clarifies that he did provide
notice of his suspension. He failed to timely submit the
affidavit confirming that he had made the required
notifications to the Florida bar.
 An objection to the Board's characterization of his driving
record, e.g., that he "was most recently cited for a
speeding offense in 2017." Board Order, ¶21. Mr. Hammer
says the 2017 incident wasn't a speeding offense but rather
8
No. 2019AP1974-BA
a "Violation of the Rules of the Pennsylvania Turnpike
Commission." He objects to the Board's statement that he
"reported having his driving privileges suspended nineteen
(19) times." Mr. Hammer clarifies that 16 of the
suspensions were for failure to timely pay traffic
citations. He also observes that various Board members
made statements during his hearing implying that his
driving record was a trivial or even amusing matter.
¶13 Mr. Hammer also challenges the factual basis for the
Board's legal conclusion that Mr. Hammer engaged in "abuse of
process," a stated "cause for further inquiry." SCR ch. 40
App., BA 6.03(e). The Board found that he used a 2013 Chapter
13 personal bankruptcy proceeding to forestall his family's
eviction from their home. Board Order, ¶18. Mr. Hammer
explains that no eviction was pending when he filed his
bankruptcy petition. He states that he felt compelled to file
the bankruptcy petition because of another existing legal
dispute. He also defends his decision to commence a civil
lawsuit in 2010 against 32 defendants, which the Board described
as abuse of process, finding it alleged "fantastical claims."
¶14 We need not decide whether the Board committed clear
error in characterizing these two incidents as abuse of process.
There is ample evidence to support the Board's conclusion that
Mr. Hammer engaged in abuse of process, as evidenced by having
been found in civil contempt. See, e.g., S.E.C. v. Bilzerian,
729 F. Supp. 2d 9 (D.D.C. 2010). In that opinion, the court
9
No. 2019AP1974-BA
relates that Mr. Hammer was found in civil contempt for
violating the 2001 Injunction for his role commencing and
prosecuting several lawsuits on behalf of Bilzerian. The
federal court ordered Mr. Hammer to purge his contempt "by
ceasing his representation of Bilzerian in any capacity in any
litigation matters and withdrawing as counsel, if listed as
counsel of record, in any of the above cases." Id. at 2
(citing Mem. Order and Op. 11, August 12, 2009, 641 F. Supp. 2d
16 (D.D.C. 2009), ECF No. 1053). The federal court also
ordered Mr. Hammer to file a sworn statement that he had
complied with the order within ten days. Id. Instead, Mr.
Hammer waited 15 days to file a sworn statement that said,
among other things, that "he has never represented Paul
Bilzerian." Statement of Compliance, May 26, 2009, ECF
No. 993. The federal court stated: "That outright lie was
paradigmatic of Hammer's habit of misleading courts."
Bilzerian, 729 F. Supp. 2d at 11. The federal court offered
other examples:
[Mr. Hammer] told Judge Paskay of the Bankruptcy Court
for the Middle District of Florida that the show cause
proceedings in this Court had already concluded, when
in fact they were still under advisement. Paskay
Order 12, ECF No. 980. Judge Paskay found that
Hammer's "blatant disregard" of the Court's order was
"typical and additional proof of Mr. Hammer's
litigious nature...." Id. In a separate matter,
Judge Paskay characterized Hammer's conduct as
"obstructive, defiant and inappropriate" and his suit
as an "unethical use of the legal system." See Docket
19, ECF No. 1029. Judge Paskay is not the only judge
who has found it necessary to reprimand Hammer,
though. Judge Martha J. Cook, in the Thirteenth
10
No. 2019AP1974-BA
Circuit, Hillsborough County, Florida, has labeled
Bilzerian and Hammer's conduct "egregious,"
"sanctionable," and "clearly unethical." Cook's Order
10, 12, ECF No. 951. She went on to say that Hammer
had participated in "sandbagging, disrupting
discovery, and walking down a road that would get him
in a lot of trouble." In light of all this, she was
"inclined to order him to attend peer review or some
sort of remedial training." Id. at 9-12.
Id.¶15 On July 13, 2010, the federal court held Mr. Hammer in
civil contempt for the second time for violating the 2001
Injunction. Id. (citing Mem. Op., 729 F. Supp. 2d at 2-
3, 2010 WL 2771844 at *1). The federal court once again ordered
Mr. Hammer to purge his contempt and ordered him to file a sworn
statement affirming that he had complied with the court's
conditions. Id. Mr. Hammer waited nearly a year before
informing the federal court that he had complied and then asked
the federal court to vacate the contempt finding. The federal
court declined. Although Mr. Hammer's law license was, by then,
already suspended, the federal court stated:
It is true that Hammer, dispossessed of his Bar
license, is a much less serious threat to this Court's
[2001 Injunction]. Still, the Court is convinced that
its [2010 contempt order] must remain in place despite
Hammer's suspension. It is possible that Hammer could
be licensed by another Bar or re-admitted to the
Florida Bar, in which case, he would again pose an
immediate threat to the Court's [2001 Injunction].
Id. at 19. In the face of the stinging rebukes his conduct
elicited from judges serving several different courts,
Mr. Hammer's effort to characterize his conduct as some "complex
technical violation" rings hollow.
11
No. 2019AP1974-BA
¶16 Mr. Hammer also challenges the Board's finding that he
was not credible and failed to show remorse. Mr. Hammer claims
his application was extremely thorough, complete, and candid,
and notes that the Board made no finding to the contrary.7 He
complains that "the Board did not once say what it believed to
be the truth, if it disbelieved Hammer." We are disinclined to
second guess credibility determinations made by factfinders. In
re Bar Admission of Nichols, 2017 WI 55, ¶18, 375 Wis. 2d 439,
895 N.W.2d 831. And, nothing in this record suggests that it was
"clearly erroneous" for the Board to decide that Mr. Hammer's
explanations for his misconduct were insufficient to excuse that
misconduct.
¶17 Mr. Hammer also objects to the Board's determinations
that his voluntary ethics training with Attorney Dietrich was
"limited" or "brief" and that Attorney Dietrich "lacked an
adequate foundation to render a reliable opinion of Mr. Hammer's
character and fitness to practice law." He defends the value
and scope of the ethics training. He argues that Attorney
Dietrich considered the same materials that the Board considered
and argues that the Board does not explain why it was able to
evaluate Mr. Hammer comprehensively, but Attorney Dietrich was
not. However, as Attorney Dietrich himself acknowledged, it is
the Board, not the expert selected by the applicant, who is
charged by this court with evaluating the character and fitness
This assertion, of course, predated the Board's recent
7
motion to supplement the record. See infra, ¶25, fn. 10.
12
No. 2019AP1974-BA
of bar applicants. SCR 30.01. We decline to disturb the
Board's decision to discount Attorney Dietrich's favorable
testimony. We conclude that the primary factual findings on
which the Board based its conclusion that Mr. Hammer failed to
satisfy SCR 40.06(1) are not clearly erroneous.8
¶18 We turn to Mr. Hammer's claim that the Board's adverse
determination is a "mere pretext for unconstitutional
discrimination against a resident of Florida." Mr. Hammer's
effort to elevate his bar admission case to a constitutional
challenge fails and is, moreover, constructed upon a faulty
foundation. Mr. Hammer claims that he should have been offered
conditional admission pursuant to SCR 40.075(1). In this,
Mr. Hammer is incorrect. Conditional admission was not
appropriate on this record. Only applicants who are able to
meet character and fitness requirements are considered for
conditional admission. See, e.g., In re Bar Admission of
Hausserman, 2018 WI 115, ¶26, fn. 5, 385 Wis. 2d 70, 921
N.W.2d 211; In re Bar Admission of Jarrett, 2016 WI 39, ¶35,
fn. 3, 368 Wis. 2d 567, 879 N.W.2d 116. Conditional admission
is not designed to address applicants who exhibit a lack
honesty, integrity, or credibility for admission. Id.To the extent that we have not discussed each of
8
Mr. Hammer's objections it is because we agree they are
insufficient to alter the outcome of this matter. "'An
appellate court is not a performing bear, required to dance to
each and every tune played on an appeal.'" County of Fond du
Lac v. Derksen, 2002 WI App 160, ¶4, 256 Wis. 2d 490, 647
N.W.2d 922 (citation omitted).
13
No. 2019AP1974-BA
¶19 Based on this faulty premise, Mr. Hammer then reasons
that because he was not offered conditional admission there
"must be some additional factor, beyond Mr. Hammer's past
conduct, which has weighed in the Board's decision to decline to
certify Mr. Hammer's admission." Mr. Hammer suggests that the
"unspoken factor" is his Florida residency. He thus claims the
Board's decision violates the privileges and immunities clause
of the United States Constitution, citing Supreme Court of New
Hampshire v. Piper, 470 U.S. 274 (1985). Piper is inapposite.
There, a New Hampshire court rule that excluded nonresidents
from practicing law in New Hampshire was ruled invalid; the
Constitution prohibits a state bar from excluding applicants on
the basis of their state of residence. Id. Wisconsin has no
such rule and Mr. Hammer offers not a shred of evidence that the
Board employs a different standard for evaluating the character
and fitness of resident and non-resident bar applicants.
¶20 Mr. Hammer's misunderstanding appears predicated on
his oft-repeated claim that if he had committed the same
professional misconduct in Wisconsin, rather than Florida, he
would have been suspended, not disbarred.9 Assuming, arguendo,
this is true, reinstatement of a person's law license following
a disciplinary suspension is governed by different rules,
In Florida, disbarment is the presumed sanction for
9
lawyers found guilty of theft from a lawyer's trust account or
special trust funds received or disbursed by a lawyer as
guardian, personal representative, receiver, or trustee. See FL
R. Disc. 3-5.1(f).
14
No. 2019AP1974-BA
SCR chs. 21-22, and administered by a different court agency,
the Office of Lawyer Regulation. Nor is the formal
reinstatement process as automatic as Mr. Hammer appears to
believe. See, e.g., Rule Petition 19-06, In the Matter of
Repealing and Recreating Supreme Court Rule 22.30 pertaining to
license reinstatement following disciplinary suspension, filed
March 13, 2019 (discussing the "more complex and time-consuming
reinstatement process required for respondent attorneys whose
licenses are revoked or suspended for six months or longer.")
¶21 Mr. Hammer points to the Board's comment that he has
not, for instance, "made no effort to become reinstated to the
Florida Bar, despite being eligible to do so . . .." Board
Order, p. 10. Mr. Hammer says that "[c]ertainly, this same
expectation would not be had of a Wisconsin resident." However,
SCR 40.06(4) clearly provides that a bar applicant's license
status in other jurisdictions is a relevant inquiry. In In re
Bar Admission of Littlejohn, 2003 WI 36, ¶23, 261 Wis. 2d 183,
661 N.W.2d 42, we declined to admit an applicant who had been
professionally disciplined when he was a dentist. Although
Littlejohn was later admitted to practice before the Minnesota
bar, we observed that "is entirely appropriate for the [Board]
to take into account the favorable decision made by the other
state, but we see no reason to require the [Board] to expressly
discuss or reject the other state's determinations. While the
other state's decision may be a relevant factor, the [Board]
should be free to accord it whatever weight the [Board] deems
15
No. 2019AP1974-BA
appropriate."; See also Bar Admission of Hausserman, 385
Wis. 2d 70, ¶17 (noting that Iowa Board of Law Examiners had
declined to let the applicant take Iowa bar exam because of
character and fitness concerns). We reject Mr. Hammer's claim
that the Board discriminated against him by virtue of his
Florida residency.
¶22 We turn to Mr. Hammer's primary claim: that the
Board's conclusion is inconsistent with this court's resolution
of other bar admission cases. Mr. Hammer identifies several
common themes in cases when we were persuaded to admit
applicants despite an adverse determination, including excellent
character references, affirmative evidence of rehabilitation,
candor in the application process, commitment to the community,
and, critically, the passage of time since the problematic
conduct. See, e.g., In re Bar Admission of Rippl, 2002 WI 15,
¶16, 250 Wis. 2d 519, 639 N.W.2d 553; In re Bar Admission of
Vanderperren, 2003 WI 37, 261 Wis. 2d 150, 661 N.W.2d 27; In re
Bar Admission of Anderson, 2006 WI 57, ¶26, 290 Wis. 2d 722, 715
N.W.2d 586; In re Bar Admission of Jarrett, 2016 WI 39, 368
Wis. 2d 567, 879 N.W.2d 116; and In re Bar Admission of Nichols,
2017 WI 55, 375 Wis. 2d 439, 895 N.W.2d 831.
¶23 While we have, on occasion, overruled the Board and
admitted certain applicants despite troubling past conduct, we
conclude that Mr. Hammer cannot be admitted to their ranks. We
acknowledge that a decade has passed since the misconduct
culminating in Mr. Hammer's Florida disbarment and that Mr.
16
No. 2019AP1974-BA
Hammer cannot undo his past misconduct. This conundrum does not
mean, however, that we are somehow compelled to offer him a law
license. While the passage of time may aid a bar applicant's
case, nothing in our prior bar admission cases should be
construed to imply that an applicant enjoys a presumption of
admission after some period of time has elapsed. Lathrop v.
Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960)
(observing that the practice of law is not a right but a
privilege).
¶24 With the serious nature of his misconduct, coupled
with the number of incidents revealing deficiencies (BA 6.03(d),
(i)), Mr. Hammer has created a very heavy burden for himself.
In such cases the passage of time may not be sufficient to
persuade us that an applicant should be admitted to the practice
of law.
¶25 Based on our own review of the non-erroneous facts of
record before the Board at the time of its decision, we agree
that Mr. Hammer has failed to meet his burden under SCR 40.07 to
establish the requisite moral character and fitness to practice
law "to assure to a reasonable degree of certainty the integrity
and the competence of services performed for clients and the
maintenance of high standards in the administration of
17
No. 2019AP1974-BA
justice."10 Accordingly, we affirm the Board's decision
declining to certify Mr. Hammer for admission to the Wisconsin
bar.
¶26 IT IS ORDERED that the decision of the Board of Bar
Examiners declining to certify that David E. Hammer has
satisfied the requirements for admission to the practice of law
in Wisconsin is affirmed.
¶27 IT IS FURTHER ORDERED the documents submitted under
seal are deemed confidential, and will be maintained under seal
until further order of the court.
On April 30, 2020, the Board moved to supplement the
10
record with evidence that as of October 2019, Mr. Hammer was a
named defendant in two separate lawsuits and had failed to
disclose the existence of these lawsuits to the Board. The Board
contends this violated Mr. Hammer's continuing duty to amend his
bar application. See BA 14.03 ("Applicants are required to
notify the Board in writing of any changes with respect to the
information elicited by the application, and each application
must be amended to reflect the facts throughout the entire time
that the application is pending.") Mr. Hammer claims that he
had no duty to disclose the litigation because the Board had
rendered its adverse decision before these lawsuits were filed
so his bar application was no longer "pending."
By separate order we took judicial notice of the existence
of the two lawsuits, Wis. Stat. § 902.01(2)(b) & (3), and
dismissed the parties' motions. The new information did not
influence this court's decision to affirm the Board's adverse
determination.
However, the continuing obligation set forth in the bar
application and provided in SCR ch. 40 App., BA 14.03, applies
to applicants during the pendency of an appeal from an adverse
determination of the Board.
18
No. 2019AP1974-BA
1