Board of Bar Examiners v. B.R.C.
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2014 WI 23 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2012XX605-BA In the matter of the conditional admission of B. R. C. Board of Bar Examiners, Complainant-Respondent-Appellant, v. B. R. C., Respondent-Petitioner-Respondent. BAR ADMISSION OF B.R.C. OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: May 9, 2014 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: ABRAHAMSON, C.J., did not participate. 2014 WI 23 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2012XX605-BA STATE OF WISCONSIN : IN SUPREME COURT In the matter of the conditional admission of B.R.C. FILED Board of Bar Examiners, Complainant-Respondent-Appellant, MAY 9, 2014 v. Diane M. Fremgen Clerk of Supreme Court B.R.C., Respondent-Petitioner-Respondent. ATTORNEY reinstatement proceeding. Attorney's conditional license reinstated. ¶1 a PER CURIAM. referee's license to report practice The Board of Bar Examiners (BBE) appeals recommending law subject the court to reinstate continued B.R.C.'s monitoring required by the terms of his conditional admission. as B.R.C. is currently suspended for failure to comply with certain terms of his conditional admission. conclusion that B.R.C. We accept the referee's findings and has satisfied character and fitness requirements for purposes of bar admission in this state and we No. 2012XX605-BA reinstate B.R.C.'s license to practice law conditioned upon his continued monitoring by the Wisconsin Lawyers Assistance Program (WisLAP) until July 2, 2014. ¶2 for This is the first time we have considered a petition reinstatement failure to filed comply admission. In adopted 40.075, SCR S. Ct. Order June 8, 2011). with 2011, 08-13, by a lawyer terms the of court, authorizing 2011 WI 40 who the at was suspended lawyer's the behest conditional (issued for conditional of the BBE, admission. June 8, 2011, See eff. This rule affords certain bar applicants who might otherwise have been denied admission to the bar because of character and fitness concerns the opportunity to practice law subject to various oversight mechanisms designed to protect the public. B.R.C. was one of the early beneficiaries of this new rule. ¶3 B.R.C. graduated from a Wisconsin law school in the spring of 2011, and sought bar admission. Aspects of his bar application, including a 2009 conviction for operating a motor vehicle while intoxicated, raised character and fitness concerns pertaining to his alcohol use. offered B.R.C. conditional Following an evaluation, the BBE admission. The terms of his conditional admission were set forth in a Consent Agreement For Conditional Agreement Admission provided in (Consent Agreement). relevant part that The B.R.C. Consent would be conditionally admitted for a period of two years during which he was required monitoring by to abstain WisLAP to from alcohol ensure 2 his use and to compliance submit with to the No. conditions on his law practice. Pursuant to 2012XX605-BA the Consent Agreement, B.R.C. agreed, among other things, "[t]o submit to random urinalysis testing for alcohol or other drugs as determined appropriate by the Coordinator." ¶4 On December 27, 2011, B.R.C. accepted the offer of conditional admission and signed the Consent Agreement. He was sworn in on January 18, 2012, and began practicing law. ¶5 Albert On March 1, 2012, B.R.C. met with WisLAP manager Linda who separate informed him "monitoring that he contract" also with needed to WisLAP. execute The a WisLAP Monitoring Contract contained some terms not mentioned in the Consent Agreement.1 B.R.C. also learned that he could be required to submit to hair follicle testing, fingernail testing, and blood testing, which are more expensive testing he had known would be required. than the urine B.R.C. refused to sign the monitoring contract asserting that he should have been made aware of the WisLAP requirements before he executed the Consent Agreement. The BBE was advised of B.R.C.'s refusal to sign the monitoring contract on March 12, 2012. ¶6 On May 11, 2012, the BBE voted to rescind B.R.C.'s conditional monitoring monitoring. admission contract for and his continued concomitant refusal failure to to sign submit a to The BBE requested this court issue an order to show 1 For example, the monitoring contract contains the requirement that "[i]f leaving the area where he/she lives or practices (e.g. vacation, etc.) interferes with the terms of the Monitoring Contract, the Participant will obtain consent from the Monitor and/or WisLAP staff before leaving." 3 No. 2012XX605-BA cause as to why B.R.C.'s license should not be suspended. The order issued and, on June 27, 2012, B.R.C. filed a response explaining his reasons for declining to sign the WisLAP Monitoring Contract and asking the court to reconsider its order to show cause. ¶7 By order dated July 2, 2012, this court informed B.R.C. that his license would be suspended if he did not sign the WisLAP Monitoring Contract within 14 days. The order directed the BBE to reinstate B.R.C.'s conditional admission if he signed the monitoring contract. We directed the BBE to ensure that applicants offered conditional admission receive a copy of the WisLAP conditional admission. Monitoring Contract before accepting The BBE has since revised its procedures accordingly. ¶8 In July 2012, some six months after commencing the practice of law, B.R.C. signed a monitoring contract. On the same day he signed the monitoring contract, B.R.C. received an e-mail from WisLAP advising him that it had changed its thirdparty administrator, requiring a new contract be executed, which was provided. The two monitoring contracts were identical except for the name of the administrator and the initiation date and completion date. The dates on the first contract were from January 18, 2012 through January 18, 2014. 4 The dates of the No. 2012XX605-BA replacement contract were from July 2, 2012 to July 2, 2014. B.R.C. signed the second contract. ¶9 Monitoring commenced.2 Shortly after signing the contract B.R.C. noted and challenged the revised completion date. On July 20, 2012, the BBE director sent a letter to B.R.C. stating: It is my understanding that you executed a monitoring contract with WisLAP on July 16, 2012. The initiation date of the monitoring contract is July 2, 2012. Accordingly, you will be monitored for two years, from July 2, 2012, to July 2, 2014, which is the Board's intent. Subject to that understanding, I will advise the court that you are compliant and I will seek to withdraw the request for your suspension. However, if you are seeking to "post date" your monitoring agreement to January 18, 2012, I will ask the court to impose the suspension on your license. ¶10 the B.R.C. timely replied to the BBE, arguing that he read court's order to impose the original terms monitoring would end in January 2014, not July 2014. such that B.R.C. did not address the fact that he had been practicing law for nearly six months without submitting to the WisLAP monitoring expressly required by his conditional admission. 2 The BBE sought B.R.C. moved to strike from page one of the BBE's reply brief the words "B.R.C. chose not to sign the agreement," arguing that B.R.C. had in fact signed both a monitoring agreement and a revised monitoring agreement. We held the motion in abeyance pending our review of the record. We dismiss the motion. The abbreviated chronological summary in the BBE's reply brief did not adversely affect our consideration of B.R.C.'s case. The court was aware, prior to B.R.C.'s suspension, that B.R.C. had signed two versions of the monitoring agreement in the wake of the court's July 2012 order and that B.R.C. later argued he was entitled to an earlier termination date. 5 No. suspension. B.R.C. objected to the 2012XX605-BA suspension request, reiterating his interpretation of the court's order. ¶11 By order dated August 14, 2012, this court suspended B.R.C.'s license to practice law in Wisconsin for his continued refusal to abide by the terms of his conditional admission.3 ¶12 On October 12, 2012, B.R.C. filed a petition seeking reinstatement. The BBE was directed to respond. filings ensued. continue for reinstatement one The year, BBE recommended following petition and B.R.C.'s which evaluate Additional it his suspension would consider eligibility a for conditional admission, but only if he underwent a comprehensive psychological evaluation including personality testing. ¶13 B.R.C. opposed the request evaluation and requested a hearing. Nicholas petition. Schweitzer to consider for a psychological We appointed Referee John this novel reinstatement Referee Schweitzer conducted proceedings culminating in an evidentiary hearing on September 16, 2013. He filed a report on October 16, 2013, recommending reinstatement subject to B.R.C.'s continued monitoring by WisLAP until July 2, 2014, and recommending B.R.C. bear the costs of this proceeding consistent with SCR 40.075(5). ¶14 The BBE appeals. comprehensive 3 psychological Nearly one to the manner in the State Bar of abeyance and now this matter. The BBE asks this court to require a evaluation in order to ascertain year later, on August 6, 2013, B.R.C. objected which his license suspension was identified on Wisconsin web site. We held the objection in dismiss it as moot in view of our decision in 6 No. whether other reinstatement. conditions If the may court deems be warranted 2012XX605-BA prior reinstatement to appropriate now, the BBE asks the court to require monitoring for two years following reinstatement. B.R.C. asks the court to reinstate his law license without any conditions. ¶15 We must determine whether B.R.C. has met his burden of demonstrating he has the requisite character and fitness to warrant reinstatement of his conditional license to practice law in Wisconsin. The referee considered B.R.C.'s petition for reinstatement under SCR 40.064 and the guidelines established in BA 6.02,5 BA 6.03,6 and SCR 22.29.7 4 SCR 40.06 provides, inter alia, that: (1) 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. . . . . (3) An applicant shall establish to the satisfaction of the board that the applicant satisfies the requirement set forth in sub. (1). The board shall certify to the supreme court the character and fitness of qualifying applicants. The board shall decline to certify the character and fitness of an applicant who knowingly makes a materially false statement of material fact or who fails to disclose a fact necessary to correct a misapprehension known by the applicant to have arisen in connection with his or her application. 5 BA 6.02 provides: 7 No. 2012XX605-BA Relevant Conduct or Condition. The revelation of discovery or any of the following should be treated as cause for further inquiry before the Board decides whether the applicant possesses the character and fitness to practice law: (a) unlawful conduct (b) academic misconduct (c) false statements by the applicant, including concealment or nondisclosure (d) acts misrepresentation involving dishonesty or (e) abuse of legal process (f) neglect of financial responsibilities (g) neglect of professional obligations (h) violation of an order of a court (i) evidence of mental or emotional impairments substantial enough to affect the applicant's ability to practice law (j) evidence of drug or alcohol dependency (k) denial of admission to the bar in jurisdiction on character and fitness grounds another (l) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction 6 BA 6.03 provides: Use of Information. The Board will determine whether the present character and fitness of an applicant qualifies the applicant for admission. In making this determination . . . the following factors should be considered in assigning weight and significance to prior conduct: (a) the conduct applicant's age 8 at the time of the No. ¶16 found 2012XX605-BA We affirm a referee's findings of fact unless they are to be clearly erroneous. See In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125; see also In re Bar Admission Wis. 2d 523, 528-29, 492 N.W.2d 153 (1992). conclusions de novo. Id. This court of Rusch, 171 We review legal retains the ultimate authority to determine who should be admitted to the bar of this state. In re Bar Admission of Rippl, 2002 WI 15, ¶¶3, 16, 250 Wis. 2d 519, 639 N.W.2d 553. ¶17 character Initially, and alcohol use. the fitness to significant practice See BA 6.02 (j). issue law in regarding B.R.C.'s Wisconsin was his The referee noted that B.R.C. (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 process applicant's candor in of any (h) the materiality misrepresentations (i) the deficiencies number of 7 the admissions omissions incidents or revealing Although the referee also considered the criteria set forth in SCR 22.29, he determined that rule offered limited guidance because it applies strictly to reinstatement following a disciplinary revocation or suspension, which is always for a specific period of time. 9 No. 2012XX605-BA has participated in the WisLAP monitoring program, first under a monitoring contract and later voluntarily, such that he has been monitored since indications, July B.R.C. monitoring contract.8 2012. has not The referee found that by all used alcohol since entering the The record supports these findings and we accept them. ¶18 B.R.C.'s conduct during these proceedings led the BBE to request a psychological evaluation, inclusive of personality testing, the results of which would be utilized to determine what, if any, additional conditions should be imposed on him. The referee acknowledged that the BBE's concerns over B.R.C.'s personality and psychological health are understandable but ultimately concluded they are not "sufficiently well founded to require him to submit to psychological testing." ¶19 On appeal, the psychological evaluation. BBE asks the court to require a The BBE explains that it made this request based on "a long series of events that have occurred with B.R.C. over the course of the last two years" including his: [R]efusal to sign the monitoring contract, his persistent belief and attempts at trying to negotiate the terms of his monitoring contract and its timeline, his lack of understanding and insight as to why the Court suspended him, his contrition towards his monitor, but the opposite behavior towards the manager 8 The parties have characterized B.R.C. as a "voluntary participant" in the WisLAP monitoring program. He has checked in more or less regularly and, as of the date of the hearing, had been tested for alcohol in his system 26 times, with no adverse result. 10 No. 2012XX605-BA of WisLAP, Ms. Albert, as well as his insistence that the Court and the BBE were persisting in violating his rights. ¶20 First, as the referee observed, this case is not about whether the BBE's decision to offer B.R.C. conditional admission was appropriate. Supreme Court Rule 40.075 provides a procedural mechanism for an attorney who wishes to challenge the BBE's decision to offer conditional admission. invoke that admission procedure. and became Instead, subject to he the B.R.C. did not accepted terms Agreement which required monitoring by WisLAP. of conditional the Consent Because he did not abide by those terms, the court ultimately suspended his conditional license to practice law. All arguments pertaining to whether the BBE erred in offering conditional admission are superfluous; we will not address them. ¶21 The referee considered both the initial dispute over signing the WisLAP Monitoring Contract and the ensuing dispute over the end date for that contract. The referee noted that WisLAP and the BBE found that B.R.C.'s repeated objections were at least in part self-serving. We agree. While he was disputing the terms of his monitoring, B.R.C. kept practicing law for some six months with no monitoring or oversight in direct contravention of the essential terms of his conditional admission. With respect to the end date of his monitoring, it begs credulity to think the court would simply excuse six months of noncompliance with oversight the BBE had deemed necessary to ensure he could be safely recommended to the public. 11 No. ¶22 On balance, however, the referee 2012XX605-BA concluded that B.R.C.'s questions, conduct, and interpretation of this court's July 2, 2012 order were not entirely unreasonable, finding that there was "an element of principle" in his objections and noting that the BBE was directed to revise certain procedures as a result of this proceeding. the referee's findings and parts of its We accept and affirm conclusions, including his determination that the BBE's concerns are not sufficiently well founded to demonstrate a need for a psychological evaluation. We therefore decline to require B.R.C. to undergo a psychological evaluation as a condition or prerequisite of his reinstatement. ¶23 The monitoring referee contract opined that scheduled to completion end July of 2, the two-year 2014, was a sufficient condition to impose on B.R.C.'s reinstatement. On appeal, the BBE asks the court to require monitoring for two years from legitimate the date concern of that reinstatement. B.R.C.'s The voluntary BBE expresses compliance a with monitoring while suspended is not an accurate proxy for whether he can manage alcohol together with the stress of legal practice. ¶24 We agree that B.R.C. must complete the full two years of monitoring as his conditional admission originally required, with a monitor located in the Milwaukee area, if possible. At this time, there is insufficient cause to warrant extending the conditions imposed SCR 40.075(6). on B.R.C. past July 2, 2014. See If B.R.C. fails to comply with the terms of his 12 No. monitoring contract immediately advise reconsider this before the it court decision. terminates, and we However, the 2012XX605-BA parties shall reserve the right accept the referee's we to conclusion that B.R.C. has demonstrated character and fitness sufficient to warrant successful completion completion of the his admission of the to the monitoring monitoring contract bar subject contract. he will be to Upon deemed admitted, without conditions. ¶25 We caution B.R.C. that before he may practice law in Wisconsin again he must ensure he has satisfied the requirements applicable to all attorneys relating to continuing legal education (CLE), bar dues, assessments and fees.9 If B.R.C. cannot proceeding pay the full costs of this reinstatement immediately, an agreement may be reached with the BBE to enable him to pay the costs over time.10 ¶26 to IT IS ORDERED that the conditional admission of B.R.C. practice law in Wisconsin is reinstated subject to the 9 In its reply brief, the BBE advises the court that if B.R.C. is readmitted in 2014, he will be required to comply with the 2013-2014 CLE requirements by reporting 30 approved hours, including three hours of ethics and professional responsibility; or, if applicable, by electing the exemption available under SCR 31.04 (2) for that reporting period. These are the standard reporting requirements for anyone who was admitted to the Wisconsin bar in 2012, and, more broadly, to those admitted in even-numbered years. 10 On March 14, 2014, B.R.C filed a response to the statement of costs asking that no costs be assessed. The BBE then filed a reply on March 19, 2014, maintaining that full costs are warranted. We impose the full costs of this proceeding consistent with SCR 40.075(5). 13 No. 2012XX605-BA requirement that B.R.C. shall comply with the remaining term of the WisLAP monitoring contract that he signed in July 2012, with a termination date of July 2, 2014. ¶27 IT IS FURTHER ORDERED that within 60 days of the date of this order, B.R.C. shall pay to the Board of Bar Examiners the costs of this proceeding, which are $4,752.65 as of March 4, 2014. ¶28 SHIRLEY S. ABRAHAMSON, C.J., did not participate. 14 No. 1 2012XX605-BA
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