Office of Lawyer Regulation v. Gary R. George
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2010 WI 116 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2005AP1978-D In the Matter of Disciplinary Proceedings Against Gary R. George, Attorney at Law: Office of Lawyer Regulation, Complainant-Respondent, v. Gary R. George, Respondent-Appellant. DISCIPLINARY PROCEEDINGS AGAINST GEORGE OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 30, 2010 December 8, 2009 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: PROSSER, J., did not participate. ATTORNEYS: For the respondent-appellant there were briefs Hazelbaker and Hazelbaker & Associates, S.C., Madison. by Mark For the complainant-respondent there was a brief by Thomas J. Basting, Sr., Madison. 2010 WI 116 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2005AP1978-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Gary R. George, Attorney at Law: FILED Office of Lawyer Regulation, Complainant-Respondent, SEP 30, 2010 v. A. John Voelker Acting Clerk of Supreme Court Gary R. George, Respondent-Appellant. ATTORNEY reinstatement proceeding. Reinstatement granted. ¶1 recommendation referee, PER James CURIAM. J. We review Winiarski, the that Attorney Gary R. of the George's petition seeking the reinstatement of his license to practice law in Wisconsin be denied. from the SCR 22.33,1 1 referee's report requesting this Attorney George filed an appeal and recommendation court SCR 22.33 provides as follows: grant the pursuant petition Review; appeal. (1) The director or the petitioner may file in the supreme court an appeal from the referee's report within 20 days after the filing of the report. to for No. reinstatement. referee's 2005AP1978-D After consideration of the parties' briefs, the report and the entire record, we conclude that Attorney George's petition for reinstatement should be granted. We also direct that the costs of the reinstatement proceeding, which total $9,702.01 as of George was December 18, 2009, be paid by Bar of Attorney George. ¶2 Attorney Wisconsin in 1979. years. On admitted to the State He served in the Wisconsin Senate for 23 April 1, 2004, this court summarily suspended Attorney George's license to practice law upon learning he had entered offenses a guilty involving U.S.C. § 371. Cir. 2005). plea to federal one count program of funds conspiracy in to violation commit of 18 See United States v. George, 403 F.3d 470 (7th Attorney George had not previously been disciplined for professional misconduct. (2) An appeal from the report of the referee is conducted under the rules governing civil appeals to the supreme court. The supreme court shall place the appeal on its first assignment of cases after the briefs are filed. (3) If 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. (4) If the supreme court denies a petition for reinstatement, the petitioner may again file a petition for reinstatement commencing nine months after the denial. 2 No. ¶3 stated 2005AP1978-D The order and memorandum in the federal court case Attorney George received approximately $270,000 in illegal kickbacks from another attorney for legal fees to that attorney as a result of Attorney George exercising his political influence over federal grants as well as programs financed by state revenues. In addition, Attorney George secured state construction contracts for a businessman as a reward for the businessman making cash payments to a business owned by Attorney George's family. Attorney George also used State of Wisconsin employees to conduct his personal business involving his private law practice. Attorney George was sentenced to 48 months in prison and three years of extended supervision. to pay $568,596.48 in restitution. No. 03-CR-259, Memorandum He was ordered See United States v. George, Decision (E.D. Wis. May 3, 2006), aff'd after remand, United States v. George, 198 Fed. Appx. 552 (7th Cir. 2006).2 ¶4 On March 26, 2008, following a full disciplinary proceeding, this court suspended Attorney George's license to practice law for four years and three months, retroactive to April 1, 2004, Disciplinary the date Proceedings of the Against summary George, suspension. 2008 WI In 21, re 308 Wis. 2d 50, 746 N.W.2d 236. 2 Attorney George successfully challenged this restitution order. On March 24, 2009, the federal court reduced Attorney George's restitution obligation to $327,278.48. The record in this disciplinary proceeding was supplemented to reflect this reduction. 3 No. ¶5 2005AP1978-D On June 23, 2008, Attorney George filed a petition seeking reinstatement of his license to practice law. A public hearing on the reinstatement petition was held on December 8, 2008. Seven Attorney well. character George's witnesses petition and testified Attorney in George The parties filed post-hearing memoranda. 2009, the referee petition. filed Attorney referee's report Regulation (OLR) and a George report filed recommending a timely recommendation. opposes The reinstatement. support of testified as On February 2, denial appeal Office The of the from the of matter Lawyer is now before the court pursuant to SCR 22.33(2). ¶6 Supreme court rule 22.31(1) provides the standards to be met for reinstatement. Specifically, the 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 of the public interest, and that he or she has complied with SCR 22.26 and the terms of the order of suspension. In addition to these requirements, SCRs 22.29(4)(a) to (4m) provide additional requirements that a petition for reinstatement must show. All of these additional requirements are effectively incorporated into SCR 22.31(1). ¶7 we will When we review a referee's report and recommendation, adopt a clearly erroneous. referee's findings of fact unless they are Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. 4 No. ¶8 The referee made the following 2005AP1978-D factual findings relevant to Attorney George's petition for reinstatement: [1] [Attorney George] does desire the return of his law license. [2] During the course of his suspension, [Attorney] George acted as a paid "consultant" for two business entities. His consulting activities included law related work and the giving of legal advice. [3] [Attorney George] remains on federal supervised release following his prison term. His supervised release is currently scheduled to end in August, 2010. The terms of his supervised release include that he is not allowed to hold employment having fiduciary responsibilities without the consent of his probation officer. He is allowed to only maintain one checking account into which all income must be deposited and expenses paid. All other accounts must be disclosed to his probation officer. He is not allowed to dispose of any assets exceeding a fair market value of $500.00 without the approval of his probation officer. Subject to the discretion of his probation officer, [Attorney] George may be required to notify third parties of risks that may be occasioned by [Attorney] George's criminal record or personal history. [4] [Attorney George] recently filed a motion in Federal Court asking that his supervised release be terminated or modified. The motion was denied. [Attorney George] intends to continue efforts to modify or end his supervised release. [5] [Attorney George] believes his prosecution in Federal Court was politically motivated. He does not believe he did anything wrong. He pled guilty only to avoid the risk of greater penalties. He believes that the "truth" will ultimately come out and show he did nothing wrong. [6] During the last year, while [Attorney George's] income has fluctuated, it appears that he has averaged approximately $8,000 per month in gross income. 5 No. 2005AP1978-D [7] [Attorney George] has paid very little of the $568,596.48 in restitution ordered by the Federal Court. [Attorney George] continues to dispute the restitution and the precise remaining balance of restitution due. [8] [Attorney George] has paid very little of the court ordered costs of his Wisconsin suspension proceeding, which amounted to $14,064.71. However, communications have occurred between OLR and [Attorney George], and [Attorney George] believes he has an agreement with OLR to pay $150 per month for now, but more in the future. OLR believes he can and should pay more. [9] As a result of being imprisoned and having his law license suspended, [Attorney George] has been unable to pay all past debts, family obligations, current living expenses, Federal restitution, and the cost of his suspension proceeding. However, he should be paying more on a monthly basis towards costs and restitution. [10] [Attorney George] has attended necessary courses and appears compliant with CLE requirements. However he must obtain and submit proof. We adopt these findings of fact. ¶9 The referee concluded Attorney George had failed to meet his burden of proof under SCR 22.31. conclusion discussed referee the the referee reasoning concluded made specific underlying Attorney George In reaching this conclusions those has not of law conclusions. shown by and The clear, satisfactory, and convincing evidence that during his period of suspension, he has not engaged in law-related work in violation of SCR 22.26(2). He concluded Attorney George has not complied fully with the terms of the order of suspension and that his conduct since the suspension or exemplary and above reproach. revocation has not been The referee concluded further 6 No. 2005AP1978-D that Attorney George does not have a proper understanding of and attitude toward the standards that are imposed upon members of the bar, and that he has not shown he will act in conformity with such cannot standards. safely be The referee recommended concluded to the legal Attorney George 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. The referee concluded Attorney George has not complied fully with the requirements set forth in SCR 22.26. The referee concluded Attorney George has not shown by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin; that his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; that his representations in the petition, including the representations required by SCRs 22.29(4)(a) to [(m)] and 22.29(5), are substantiated; and that he has complied fully with the terms of the order of suspension and with the requirements of SCR 22.26. ¶10 We consider these conclusions de novo. We begin by acknowledging that some of Attorney George's past conduct has been deeply flawed. He has been professionally disciplined and criminally prosecuted for that bad conduct. He has been less than activities forthcoming under suspension. with information about his while He has steadfastly maintained that he did nothing wrong and that his criminal prosecution was politically 7 No. motivated. 2005AP1978-D He appears to operate under the misapprehension that he is somehow entitled to reinstatement upon the expiration of his license suspension. this entire difficult Indeed, Attorney George's approach to reinstatement and proceeding time-consuming inquiry has than made it it might a more otherwise have been. ¶11 today: However, we focus on the specific question before us Whether satisfactory, Attorney and George convincing has evidence demonstrated that his practice law should be reinstated at this time. by clear, license to After careful review of the entire record, we conclude the answer to this question is, "Yes." ¶12 The referee concluded Attorney George did meet certain of the requirements necessary for reinstatement. There is no dispute Attorney George desires to have his license reinstated and that he has maintained competence and learning in the law by attendance at identified educational activities. We agree with these conclusions. ¶13 The referee commented that Attorney George could have done more to pay his restitution obligations in federal court and his costs due in the disciplinary proceeding in this court. However, the referee concluded Attorney George should not be denied reinstatement even though he has not yet fully paid his restitution obligations. ¶14 of being More specifically, the referee found that as "a result imprisoned and having his law license suspended, [Attorney George] has been unable to pay all past debts, family 8 No. 2005AP1978-D obligations, current living expenses, Federal restitution, and the cost of his suspension proceeding." The referee concluded Attorney George "should be paying more on a monthly basis toward costs and restitution." We agree with these findings, and we also agree with the referee's observation that Attorney George should not be denied reinstatement on the basis that those costs have not been paid. As to the restitution ordered in his federal case, as the referee found, Attorney George continues to challenge the remaining amount of restitution. with the toward referee's this conclusion restitution that obligation his Again, we agree failure should not to pay preclude more his reinstatement.3 ¶15 The referee was particularly troubled by evidence that Attorney George may have practiced law while under suspension, may have failed to comply with the terms of the suspension order, has failed to acknowledge any wrongdoing, and remains on federal supervised release on terms that would seem to preclude the practice of law. ¶16 We address these serious matters in turn. The reinstatement process requires Attorney George to show by clear, satisfactory, and convincing evidence that during 3 On April 22, 2010, Attorney George signed a stipulation for final order of garnishment acknowledging that the restitution balance on that date was $191,023.50. In this stipulation Attorney George reserved the right to challenge the calculation of the amount of restitution. On August 6, 2010, Attorney George filed a petition for writ of habeas corpus in which he seeks to vacate his conviction. 9 No. 2005AP1978-D his period of suspension, he has not engaged in law-related work in violation of SCR 22.26(2), which provides: An attorney whose license to practice law is suspended or revoked or who is suspended from the practice of law may not engage in this state in the practice of law or in any law work activity customarily done by law students, law clerks, or other paralegal personnel, except that the attorney may engage in law related work in this state for a commercial employer itself not engaged in the practice of law. This is a critical inquiry because it implicates several related rule provisions relevant to reinstatement. 22.29(4)(b) requires a petitioner Supreme court rule demonstrate he has not practiced law during the period of suspension or revocation. Supreme court rule 22.29(4)(c) requires a showing that the petitioner has complied fully with the terms of the order of suspension or revocation. Supreme court rule 22.29(4)(h) requires a demonstration that the "petitioner has fully complied with the requirements set forth in SCR 22.26." Supreme court rule 22.31(1)(d) requires Attorney George demonstrate that he has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26. compliance with SCR 22.26 "is a condition Proof of precedent reinstatement of the attorney's license to practice law." to See SCR 22.26(3). ¶17 During the course of his suspension, Attorney George acted as a paid consultant for two business entities. Attorney George worked as a consultant for Pennebaker Enterprises LLC, a business engaged in commercial 10 roofing and sheet metal, for No. approximately one year during his suspension. Attorney insurance George "help[ed] issues, [Pennebaker worker's general HR matters." comp As a consultant, Enterprises] issues, 2005AP1978-D stuff with [its] like that, or Attorney George was paid $5,000 per month for his services with Pennebaker Enterprises LLC. ¶18 R.J. Attorney George also has worked as a consultant for Harris suspension. and Associates, Attorney a George marketing apparently company, worked on during his diversity, personnel, and legislative issues on behalf of R.J. Harris and Associates' clients. Attorney George has been paid $3,000 a month for at least eight months of work during his suspension. ¶19 Attorney The referee George's was concerned activities about while several under aspects suspension. of In particular, the referee noted that the evidence Attorney George provided regarding his activities while under suspension was "not clear." ¶20 The referee ultimately concluded that Attorney George had violated SCR 22.26 by providing law-related work for more than one commercial employer, reasoning that the intent of SCR 22.26(2) "is to prohibit a suspended lawyer from engaging in law related work, as a consultant, or otherwise, for multiple employers, entities, and individuals." that "[p]roviding law related work, The referee commented as a consultant, for multiple employers or entities, circumvents the rule and amounts to the practice of law." 11 No. ¶21 We disagree with this conclusion. 2005AP1978-D Supreme court rule 22.26(2) does not preclude a suspended attorney from engaging in law-related work on behalf of more than one employer. ¶22 With respect to the allegations that Attorney George engaged in the unauthorized practice of law, we agree that the details Attorney George provided reinstatement regarding his suspension That were said, we somewhat conclude in law-related cursory, that his petition activities complicating Attorney George for during our his inquiry. satisfied the requirements of SCR 22.26(2). ¶23 The referee expressed legitimate concern Attorney George's failure to acknowledge wrongdoing. referee noted, Attorney George believes his about As the prosecution in federal court was politically motivated: He does not believe he did anything wrong. He pled guilty only to avoid the risk of greater penalties. He believes that the "truth" will ultimately come out and show he did nothing wrong. What are the ramifications of Attorney George's belief? this preclude his reinstatement? The referee Should ultimately determined that he could not conclude that Attorney George has the proper understanding of legal standards or that he will act in conformity with the standards. The referee explained: Several times during the hearing, I asked [Attorney] George to address his current feelings on the conduct that led to his discipline. It was clear to me that he has difficulty expressing remorse for his conduct, given the fact that he does not feel he did anything wrong. [Attorney] George did indicate that his past problems were the result of his political career. He testified that those problems 12 No. 2005AP1978-D will not reoccur, given that he can no longer be an elected politician. ¶24 We respect the referee's insightful observations, but we reach a different conclusion based on the same facts. There is nothing in the supreme court rules that requires Attorney George to acknowledge the wrongfulness of his actions before reinstatement. proper The rules do require Attorney George to have a understanding of and attitude towards the standards imposed on members of the Wisconsin bar and to act in conformity with those standards if reinstated. We note that each of the seven Attorney witnesses who testified on George's behalf believes Attorney George would not engage in further misconduct in the future. All of the witnesses believe Attorney George to be honest and all stated they would also trust Attorney George with their future legal affairs. The record evidence shows Attorney George greatly regrets the embarrassment he has brought to his family acknowledged the and his family evidence name. "strongly Indeed, suggests the that referee [Attorney] George will avoid further misconduct" albeit because "he does not wish to go to prison again or lose his license to practice law again, and not because he appreciates the wrongfulness of his previous misconduct." ¶25 We are reluctant to hold that an explicitly admit wrongdoing to be reinstated. individual must Attorney George has entered a guilty plea to criminal conduct and that fact is a matter of public record. He has been criminally sanctioned, incarcerated, and professionally disciplined for his offenses. 13 No. 2005AP1978-D The evidence supports a conclusion that Attorney George will not commit professional misconduct in the future. As such, we are persuaded that he has met his burden of showing that he has a proper understanding of and attitude toward the standards imposed on members of the Wisconsin bar, and that he will act in conformity with those standards. ¶26 The most troubling aspect of Attorney George's reinstatement petition for this court was the fact that Attorney George remained on federal supervised release with conditions that made it potentially practice of law referee and stated, difficult comply "While with the for supreme Supreme him to court Court resume rules. rules the The do not specifically address the issue of reinstatement of a lawyer who remains under Federal supervised release, conflict of interest, fiduciary, and confidentiality issues are apparent, given the current conditions of petitioner's supervised release." ¶27 We share the referee's concern that the terms of Attorney George's supervised release could constrain his ability to practice law. He was not allowed to hold employment having fiduciary responsibilities without the consent of his probation officer. He was allowed to maintain only one checking account into which all income must be deposited and expenses paid. He was required to disclose all other accounts to his probation officer. a fair He was not allowed to dispose of any assets exceeding market value probation officer. officer, Attorney of $500 without the approval of his Subject to the discretion of his probation George might 14 have been required to notify No. third parties of risks that may be occasioned 2005AP1978-D by Attorney George's criminal record or personal history. ¶28 Attorney's George's period of supervised release ended on August 9, 2010. Therefore, the strict conditions imposed upon him are no longer potential impediments to his practice of law. ¶29 Attorney George is a high-profile individual whose criminal and professional misconduct has been well publicized. However, we must guard against disciplinary case or revisit a the Attorney George has been punished. temptation criminal to "re-try" conduct for the which At the same time, Attorney George is not "entitled to reinstatement" simply because the period of suspension has lapsed. See In re Disciplinary Proceedings Against Hyndman, 2002 WI 6, ¶4, 249 Wis. 2d 650, 638 N.W.2d 293. ¶30 conclude Upon careful consideration of the entire record, we Attorney George has met his burden of proof with respect to the elements necessary to justify reinstatement. We conclude Attorney George can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others as a lawyer. ¶31 In granting reinstatement, we stress Attorney that he George's is not petition being held for to a different or higher standard of conduct than other attorneys in this state. All attorneys licensed to practice in Wisconsin are held to the highest standard of conduct, and we expect nothing less from Attorney George. 15 No. ¶32 IT IS ORDERED that Gary R. George's 2005AP1978-D license to practice law in Wisconsin is reinstated effective the date of this order. ¶33 IT IS FURTHER ORDERED that within 60 days of the date of this order, Gary R. George 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 Gary R. George to practice law in Wisconsin shall be suspended until further order of the court. ¶34 DAVID T. PROSSER, J., did not participate. 16 No. 1 2005AP1978-D
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