Office of Lawyer Regulation v. Brian B. Burke
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2008 WI 119 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2006AP432-D In the Matter of Disciplinary Proceedings Against Brian B. Burke, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Brian B. Burke, Respondent. DISCIPLINARY PROCEEDINGS AGAINST BURKE OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: October 9, 2008 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: PROSSER, J., did not participate. 2008 WI 119 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2006AP432-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Brian B. Burke, Attorney at Law: Office of Lawyer Regulation, Complainant, FILED OCT 9, 2008 v. David R. Schanker Clerk of Supreme Court Brian B. Burke, Respondent. ATTORNEY reinstatement proceeding. ¶1 PER CURIAM. Reinstatement granted. We review the report and recommendation of the referee, Christine Harris Taylor, that the petition of Attorney Brian B. Burke for the reinstatement of his license to practice law in this state be granted. Because no party has responded to or appealed from that report and recommendation, our review proceeds under SCR 22.33(3).1 1 SCR 22.33(3) 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. ¶2 2006AP432-D After independently reviewing the matter, we determine that Attorney Burke has met his burden for reinstatement of his license to practice law in Wisconsin. We also conclude that Attorney Burke should be required to pay the outstanding costs of this reinstatement proceeding, amounting to $3,876.39 as of July 18, 2008. ¶3 The reinstatement found in SCR standards after a that apply disciplinary 22.31(1).2 The to all petitions seeking suspension/revocation petitioning attorney are must demonstrate by clear, satisfactory, and convincing evidence that he has the moral character necessary to practice law in this state, that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that he has fully complied with 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. suspension order and SCR 22.26. incorporates requirements for 2006AP432-D In addition, SCR 22.31(1)(c) a pursuant to SCR 22.29(4)(a)-(4m).3 petition for reinstatement, 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 petitioner's license reinstated. to have the (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. (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. 3 No. demonstrate that the required 2006AP432-D representations in the reinstatement petition are substantiated. ¶4 Attorney Burke was Wisconsin in September 1981. admitted to practice law in From 1988 until January 3, 2003, Attorney Burke served as an elected Wisconsin state senator. On January 3, 2006, pursuant to SCR 22.20, this court summarily suspended Attorney Burke's law license. He has not practiced law since that time. ¶5 criminal Attorney acts trustworthiness, Disciplinary Burke's that and misconduct reflected fitness Proceedings between December 2000 and adversely as Against Wis. 2d 198, 730 N.W.2d 651. consisted a on lawyer. Burke, 2007 of committing his honesty, See WI In 46, re 300 The criminal charges alleged that April 2002, Attorney Burke, while serving in public office as a senator, intentionally supervised and oversaw extensive work of state employees performing acts to further his campaign for attorney general, using resources of the State of Wisconsin over which Attorney Burke had authority to control in his public office. Id., ¶4. On October 5, 2005, (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. pursuant to a plea agreement entered a guilty office, a Class plea E to with one felony, count and one officer, a Class A misdemeanor. dismissed, and read in. ¶6 the of State, 2006AP432-D Attorney Burke misconduct count of in public obstructing an Other charges were amended, See id., ¶7. On October 29, 2007, Attorney Burke filed a petition for reinstatement of his license to practice law. As required by SCR 22.29, Attorney Burke's petition states that he has fully complied with the terms of the order of his suspension and will continue to comply with them until his license is reinstated. He states he suspension has and, not by practiced agreement law with during the his Office period of of Lawyer Regulation (OLR), he voluntarily refrained from the practice of law from the summer of 2002, when he was advised that the OLR was reviewing the events on which the disciplinary proceeding was based. He also states that he has paid the costs of the disciplinary proceedings in the sum of $11,081.49. He avers that he has obtained 15 continuing legal education credits and has fully complied with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended. ¶7 Following its investigation, the OLR filed a response to Attorney Burke's reinstatement petition that conditionally supported the petition, subject to the outcome of the public hearing. At the end of the public hearing, the OLR did not oppose reinstatement. recommended Attorney The Board of Bar Examiners (BBE) also Burke's license 5 reinstatement. The BBE No. 2006AP432-D confirmed that Attorney Burke completed the necessary number of continuing legal education hours, including ethics credits. ¶8 A public hearing on Attorney reinstatement was held May 29, 2008. Burke's petition for On July 2, 2008, the referee submitted her report recommending that Attorney Burke's license to practice law in Wisconsin be reinstated. The referee stated that no evidence was presented at the public hearing to cast doubt on practice law. Attorney Burke's present qualifications to The referee observed that the public hearing and the entire proceedings were not contentious. ¶9 his The referee found that Attorney Burke's conduct since suspension referee has been observed understanding and exemplary Attorney attitude and toward reproach. displayed Burke above the the standards The proper imposed upon members of the bar and concluded he will act in conformity with those standards. The referee found that Attorney Burke testified convincingly about the facts and circumstances of his ethical lapses that led to his criminal conviction, subsequent suspension, his activities during the last two years, as well his current situation and future plans. that Attorney Burke can safely be The referee concluded 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. ¶10 Attorney Burke presented witnesses attesting to his character. the testimony of five The referee found there was no doubt that Attorney Burke has been rehabilitated and will 6 No. approach any future activities as heightened awareness and vigilance. a lawyer 2006AP432-D with a keenly The referee determined the evidence proves, to the standard of clear, satisfactory, and convincing, that Attorney Burke has fully complied with the terms of the suspension order and SCR 22.26, that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that he has the moral character to practice law in Wisconsin. ¶11 by clear, The referee concluded that Attorney Burke established satisfactory, and convincing evidence that he has satisfied all of the criteria in SCR 22.29 for reinstatement of his license to practice law. Burke has maintained The referee found that Attorney competence and learning in the law attending 12 different continuing legal education seminars. by The referee recommended the petition for reinstatement be granted and that Attorney Burke pay the costs of the reinstatement proceeding within six months following his reinstatement. ¶12 Upon our independent review, we determine referee's findings of fact are not clearly erroneous. that the See In re Disciplinary Proceedings Against Carroll, 2004 WI 19, ¶9, 269 Wis. 2d 172, 675 N.W.2d 792 (referee's factual findings affirmed unless clearly erroneous). We agree with the referee, based upon those factual findings, that Attorney Burke has satisfied the legal requirements for the reinstatement of his license to practice law in Wisconsin. We note that Attorney Burke has not been subject to professional discipline prior to his current 7 No. suspension. misconduct 2006AP432-D In addition, while Attorney Burke's professional in the course of his work as a state senator seriously breached the public trust, it did not directly relate to his work as a practicing lawyer representing clients. Based on the referee's findings of fact, we have no reason to doubt that Attorney Burke will meet his professional obligations as an attorney. Therefore, we grant Attorney Burke's petition for reinstatement. be required We further determine that Attorney Burke should to pay the IS ORDERED full costs of this reinstatement proceeding. ¶13 IT that Brian B. Burke's license to practice law in Wisconsin is reinstated effective the date of this order. ¶14 IT IS FURTHER ORDERED that within 180 days of the date of this order Brian B. Burke 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 Brian B. Burke to practice law in Wisconsin shall be suspended until further order of the court. ¶15 DAVID T. PROSSER, J., did not participate. 8 No. 1 2006AP432-D
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