Board of Attorneys Professional Responsibility v. Gerald M. Schwartz
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2005 WI 158 SUPREME COURT CASE NO.: OF WISCONSIN 1991AP21-D & 1994AP2565-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Gerald M. Schwartz, Attorney at Law: Board of Attorneys Professional Responsibility n/k/a Office of Lawyer Regulation, Complainant, v. Gerald M. Schwartz, Respondent. DISCIPLINARY PROCEEDINGS AGAINST SCHWARTZ OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: November 23, 2005 2005 WI 158 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 1991AP21-D & 1994AP2565-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Gerald M. Schwartz, Attorney at Law: Board of Attorneys Professional Responsibility n/k/a Office of Lawyer Regulation, FILED NOV 23, 2005 Complainant, v. Cornelia G. Clark Clerk of Supreme Court Gerald M. Schwartz, Respondent. ATTORNEY reinstatement proceeding. Reinstatement granted upon conditions. ¶1 PER CURIAM. We review the recommendation of the referee that Gerald M. Schwartz's license to practice law in Wisconsin be reinstated upon certain conditions. We adopt the referee's findings of fact and conclusions of law and agree with his recommendation that Gerald M. Schwartz's license to practice law be reinstated. We also agree with the referee that it is appropriate to impose certain conditions upon the reinstatement. Nos. 1991AP21-D & 1994AP2565-D In addition, we find it appropriate that Attorney Schwartz pay the costs of the reinstatement proceeding. See In re Disciplinary Proceedings Against Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287. ¶2 Attorney Wisconsin in Schwartz 1979. was In 1986 admitted the to practice Wisconsin law Supreme in Court suspended his license to practice law for 90 days for misconduct committed in the course of his representation of a client in a personal injury action. Schwartz, 134 In re Disciplinary Proceedings Against Wis. 2d 18, 397 N.W.2d 98 (1986). In 1992 Attorney Schwartz was administratively suspended for failure to comply with education license Board of requirements. for 60 days 174 Wis. 2d Examiners In as personal injury action. Schwartz, Bar 1993 discipline (BBE) this for continuing court legal suspended misconduct in his another In re Disciplinary Proceedings Against 312, 496 N.W.2d 605 (1993). In 1995 Attorney Schwartz's license to practice law in Wisconsin was suspended for 18 months, again for professional misconduct. In re Disciplinary Proceedings Against Schwartz, 193 Wis. 2d 157, 532 N.W.2d 450 (1995). Generally, Attorney Schwartz's misconduct consisted of various forms of neglect of his clients and client matters. ¶3 Attorney Schwartz petitioned for reinstatement of his license to practice law in November 2004. Following a hearing in May 2005 the referee issued a report recommending that the petition for reinstatement be granted, with conditions. 2 The Nos. 1991AP21-D & 1994AP2565-D Office of Lawyer Regulation (OLR) supports reinstatement upon conditions and no appeal from this recommendation was filed. ¶4 SCR reinstatement. 22.31(1)1 provides the standard to be met for A petitioner must show by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive she has complied with SCR 22.26 and the terms of the suspension. In addition, of SCR the public 22.29(4)2 interest, states and related that he or requirements that a 1 SCR 22.31(1) provides that 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 ([4]m) 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 SCR 22.29(4) provides that the petition for reinstatement shall show all of the following: (a) The petitioner desires petitioner's license reinstated. to have the (b) The petitioner has not practiced law during the period of suspension or revocation. 3 Nos. petition for reinstatement must show. 1991AP21-D & 1994AP2565-D All of these additional requirements are effectively incorporated into SCR 22.31(1). (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. (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 Nos. ¶5 1991AP21-D & 1994AP2565-D Here, the referee concluded that Attorney Schwartz met all of the criteria for reinstatement and met his burden of demonstrating that his license to practice law in Wisconsin should be reinstated, subject to certain conditions relating to a medical condition for which he is receiving treatment. have reviewed the record and agree with this We conclusion and recommendation. ¶6 Attorney Schwartz's physician testified that it is his medical opinion that Attorney Schwartz's reinstatement poses no danger to the public and would not be detrimental to the public interest. reports He indicated that he is available to provide periodic to the condition. He OLR concerning further testified Attorney that Schwartz's Attorney medical Schwartz is remorseful for his prior actions. ¶7 The referee found that Attorney Schwartz has made restitution to all persons injured or harmed by his misconduct in accordance with orders of the court. He has settled and satisfied proceedings against all him, attendance at costs and 91 of has the disciplinary maintained hours of competence BBE-approved and brought learning continuing by legal education programming, including 15 hours of EPR ethics credits, since May 5, 2004. ¶8 Attorney The BBE supports his reinstatement. Schwartz indicates that he intends to practice in the area of landlord-tenant rights, employment law and general business law upon reinstatement of his license to practice law. He testified that he would not practice as a sole practitioner if he were reinstated. 5 Nos. ¶9 Attorney testified in Schwartz support of produced his 1991AP21-D & 1994AP2565-D witnesses character, who describing also him as "honest, reliable, and professional." ¶10 Following the hearing, the referee concluded that Attorney Schwartz had demonstrated by clear, satisfactory, and convincing evidence the requirements for reinstatement set forth in SCR 22.29(4). Specifically, he found that: 1. [Attorney Schwartz] has the moral character to practice law in Wisconsin. 2. His resumption of [the] practice of law will not be detrimental to the administration of justice or subversive [] of the public interest. 3. His representations in the Petition for Reinstatement, including representations required by SCR 22.29(4)(a) to ([4]m) and 22.29(5) are substantiated. 4. He has complied with the terms of the orders of suspension and with the requirements of SCR 22.26. ¶11 After an independent review of the record we conclude that Attorney Schwartz has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law. We agree with the referee's recommendation that Attorney Schwartz's license to practice law in Wisconsin be reinstated, subject to the conditions imposed herein, requiring him to submit annual medical reports to the OLR for a period of two years. should be Schwartz's sufficient practice to of We conclude that these reports enable law in 6 the the OLR to monitor unlikely event Attorney that a Nos. 1991AP21-D & 1994AP2565-D recurrence of his medical condition occurs. Attorney Schwartz to pay the costs of Finally, we direct this reinstatement proceeding, which presently total $3688.13. ¶12 IT IS ORDERED that the petition for reinstatement of the license of Gerald M. Schwartz to practice law in Wisconsin is granted, effective the date of this order. ¶13 IT IS FURTHER reinstatement, for reinstatement Gerald a M. ORDERED period of Schwartz that as a two years shall submit condition following annual of his medical reports to the Office of Lawyer Regulation. ¶14 IT IS FURTHER ORDERED that within 60 days of the date of this order Gerald M. Schwartz shall pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time the license of Gerald M. Schwartz to practice law in Wisconsin shall be suspended until further order of the court. 7 Nos. 1 1991AP21-D & 1994AP2565-D
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