Office of Lawyer Regulation v. Barry LeSieur
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2010 WI 117 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2007AP2763-D In the Matter of Disciplinary Proceedings Against Barry LeSieur, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Barry LeSieur, Respondent. DISCIPLINARY PROCEEDINGS AGAINST LESIEUR OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: September 30, 2010 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: BRADLEY, J., dissents (opinion filed). 2010 WI 117 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2763-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Barry LeSieur, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, SEP 30, 2010 v. A. John Voelker Acting Clerk of Supreme Court Barry LeSieur, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 of the PER CURIAM. referee, We review the report and recommendation Attorney Gary L. Olstad. The referee recommended that Attorney Barry LeSieur be privately reprimanded for his professional misconduct subject to the possibility of a later "conversion" to a public reprimand, that certain conditions be placed upon Attorney LeSieur's continued practice of law in Wisconsin, and that Attorney LeSieur be required to pay the costs of this proceeding. After fully reviewing the No. 2007AP2763-D matter, we conclude that a public reprimand and the assessment of full costs imposition are of appropriate. conditions on We also Attorney conclude LeSieur's that license the is appropriate, but we modify the conditions recommended by the referee. ¶2 Attorney LeSieur was admitted to the practice of law in Wisconsin in 1996. He maintains a private law practice in Lac du Flambeau. ¶3 Attorney LeSieur has been the subject of professional discipline on one prior occasion. LeSieur agreed to the On October 20, 2006, Attorney imposition of a consensual private reprimand due to his criminal conviction for operating a motor vehicle while intoxicated (OWI). The incident underlying this private reprimand occurred in May 2004. reprimand was subsequently formally issued in approved February The consensual private by 2007. a The referee consensual and was private reprimand identified the May 2004 incident as Attorney LeSieur's third OWI offense. In reality, the subject of the private reprimand was Attorney LeSieur's second OWI conviction. ¶4 The proceeding 2006, conduct stems eight underlying from another days after he OWI the present incident. agreed to the On disciplinary October consensual 28, private reprimand for his second OWI conviction, Attorney LeSieur once again operated arrested. motor vehicle while intoxicated and was He subsequently pled no contest to a charge of OWI (third offense). his a operator's He was sentenced to 90 days in jail and had license revoked 2 for a period of 29 months. No. 2007AP2763-D Attorney LeSieur timely self-reported his OWI conviction to the Office of Lawyer Regulation (OLR). ¶5 Based on this See SCR 21.15(5). conduct, the OLR filed a complaint alleging that Attorney LeSieur had committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b).1 Attorney factual LeSieur's answer allegations, SCR 20:8.4(b). but generally it did admitted not admit the a complaint's violation of Attorney LeSieur, however, subsequently entered into a stipulation, in which he admitted the facts of his arrest and conviction for OWI (third offense) and also conceded that his conduct violated SCR 20:8.4(b). ¶6 The stipulation did not contain any agreement regarding the appropriate level of discipline to be requested. Consequently, the parties filed memoranda addressing the issue of sanction. ¶7 The OLR requested a public reprimand, primarily contending that the concept of progressive discipline required a more serious sanction than the private reprimand imposed for Attorney LeSieur's prior OWI conviction. that the private reprimand had not The OLR pointed out sufficiently deterred Attorney LeSieur from further misconduct because he had operated 1 SCR 20:8.4(b) states it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; . . . ." 3 No. 2007AP2763-D a motor vehicle while intoxicated just a few days after agreeing to the private reprimand for this same type of conduct. ¶8 Attorney LeSieur argued that he should not receive any discipline for his conduct and that he should be diverted to an alternative to discipline program pursuant to SCR 22.10. He contended that discipline was not appropriate because his OWI offense did not directly relate to the practice of law. ¶9 The referee found, based on the parties' stipulation, that Attorney LeSieur had engaged in the operation of a motor vehicle while intoxicated and that he had been convicted of a criminal OWI offense, based on his no contest plea. concluded that this conduct constituted a The referee violation of SCR 20:8.4(b). ¶10 The referee recommended that Attorney LeSieur receive a conditional private reprimand for his professional misconduct. He suggested Attorney that LeSieur program and related offense reprimand LeSieur on private completing Attorney for order. failed reprimand the to years referee comply should be a with not committing the recommended to a conditioned alcohol following either "converted" be recognized LeSieur two The reprimand that condition, public on treatment any date if the alcoholof the Attorney private reprimand. The referee also recommended that Attorney LeSieur be required to pay the full costs of this disciplinary proceeding. ¶11 an order Following receipt of the referee's report, we issued directing Attorney LeSieur to advise as to what alcohol-related treatment he had received since October 2006 and 4 No. 2007AP2763-D whether he was continuing to receive treatment or to participate in an alcohol-related program. speak with individuals who We also directed the OLR to had provided or were providing alcohol-related treatment or programming to Attorney LeSieur and to file a report that (1) described the nature of Attorney LeSieur's alcohol consumption since October 2006, (2) discussed the alcohol-related treatment or programming he had received, and (3) suggested Attorney LeSieur's Attorney any conditions license LeSieur was given to that should practice opportunity an law to OLR's report and its suggested conditions. be placed in Wisconsin. respond to on the The parties provided the requested information, which we have carefully considered. ¶12 Before turning to our analysis of this matter, we note the standard of review that we follow in attorney disciplinary proceedings. are found We affirm a referee's findings of fact unless they to be clearly erroneous. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We review the referee's conclusions of law, however, on a de novo basis. Id. Finally, we determine the appropriate level of discipline given the particular facts of each case, benefiting independent from it. of In the re referee's Disciplinary recommendation, Proceedings but Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. ¶13 The underlying facts and the legal conclusion that those facts demonstrate a violation of SCR 20:8.4(b) have been stipulated. We therefore accept and findings of fact and conclusions of law. 5 adopt the referee's No. ¶14 the 2007AP2763-D The issues that require a decision in this matter are appropriate level of discipline and the nature of any conditions that should be placed upon Attorney LeSieur's license to practice law. ¶15 With respect to the appropriate sanction, we conclude that Attorney LeSieur should be publicly reprimanded. Although Attorney LeSieur stipulated that his OWI conviction demonstrated that he had violated SCR 20:8.4(b), his filings both to the referee and to this court indicate his belief that he should not receive professional discipline for his conduct because it did not directly relate to the practice of law. He contends that any response to his alcohol-related conduct should be "treatment oriented." ¶16 While we acknowledge that assisting Wisconsin lawyers to cope with an addiction to or dependence on alcohol so they can comply with their professional obligations is a proper goal of the lawyer regulatory system, that fact does not mean that conduct that occurs while an attorney is under the influence of alcohol cannot subject the attorney to professional discipline. Indeed, we have held that a pattern of multiple OWI convictions can demonstrate a reflects adversely serious on an lack of attorney's respect for "fitness the as law that a lawyer in other respects" under SCR 20:8.4(b) and can support a public reprimand. In re Disciplinary Proceedings Against Brandt, 2009 WI 43, ¶42, 317 Wis. 2d 266, 766 N.W.2d 194. In the Brandt case, Attorney Brandt received both his third and fourth OWI convictions in Wisconsin, as well as another OWI conviction in 6 No. Minnesota. In addition, he was found to 2007AP2763-D have failed to supervise his non-lawyer assistant, leading to irregularities in his client trust account. For this conduct, we imposed a public reprimand. ¶17 Likewise, we determine that Attorney LeSieur's conduct demonstrates a pattern of disregard for the requirements of the law and calls for the imposition of public discipline. Moreover, it is clear that a private reprimand would not be sufficient to deter related misconduct. Attorney LeSieur from further alcohol- He already received a consensual private reprimand for his second OWI offense. After he agreed to such a reprimand and before it was even finalized, he again got behind the wheel of demonstrates a a vehicle disregard while both he for was the intoxicated. state's This criminal law against operating a motor vehicle while intoxicated and this court's Rules of Professional Conduct for Attorneys. Consequently, a more serious sanction than a private reprimand is clearly appropriate.2 ¶18 We also conclude that some conditions on Attorney LeSieur's license to practice law are necessary to ensure that Attorney LeSieur is obtaining the treatment he needs to cope with his alcohol-related problems and to protect the public from any future misconduct that might result from Attorney LeSieur's 2 We do not follow the recommendation of impose a private reprimand that could be public reprimand if Attorney LeSieur fails specified conditions. We do not impose convertible discipline. 7 the referee that we "converted" into a to comply with the such contingent or No. consumption of alcohol. 2007AP2763-D Generally, we conclude that Attorney LeSieur should undergo a thorough alcohol and other drug abuse (AODA) evaluation contained in and the should comply evaluation. with the recommendations we recognize Although that Attorney LeSieur has stated that he has not consumed alcohol since 2006, we also believe it is appropriate to require him to submit to random alcohol/substance abuse screenings for a period of two years. conditions, These conditions are based on the OLR's suggested which in turn were based on the suggestions of Attorney LeSieur's treatment provider. ¶19 Finally, we determine that Attorney LeSieur should be required to pay the full costs of this proceeding, which were $2,667.83 as of February 17, 2009. circumstances deviation costs. present from the in this court's SCR 22.24(1m). case general There are no extraordinary that would call for policy of imposing a full Although Attorney LeSieur did enter into a stipulation, he did not do so until after a referee had been appointed, and even then he continued to contest the level of discipline to be imposed. As requested by the OLR, we do not require Attorney LeSieur to pay the OLR's costs in responding to our order to prepare a report regarding Attorney LeSieur's treatment and proposed conditions on his license to practice law in this state. ¶20 IT IS ORDERED that Barry LeSieur is publicly reprimanded for his professional misconduct. ¶21 IT IS FURTHER ORDERED that within 30 days after the date of this order, Barry LeSieur shall sign reciprocal releases 8 No. 2007AP2763-D of confidentiality (complying with the federal Health Insurance Portability federal and and Accountability state laws) for Act each and all other treatment applicable provider who is providing or has provided alcohol-related or substance abuserelated treatment or services to Barry LeSieur within the last ten years, so that such treatment providers may share pertinent information related to Barry LeSieur's substance abuse history and related issues. In addition to authorizing other treatment providers to obtain access to such treatment information, the releases signed by Barry LeSieur shall also authorize disclosure of all records concerning alcohol-related or substance abuserelated treatment Regulation. or services to the Office of Lawyer The Office of Lawyer Regulation shall maintain as confidential all information or documents received pursuant to these releases. The releases required by this paragraph shall remain in effect for two years from the date of this order. ¶22 IT IS FURTHER ORDERED that within 60 days after the date of this order, Barry LeSieur shall submit to an alcohol and other drug abuse (AODA) evaluation by a professional AODA counselor or treatment provider, which written evaluation shall assess Barry status and LeSieur's make substance specific abuse recommendations continuing treatment or maintenance. history for and Barry current LeSieur's A copy of the written AODA evaluation shall be submitted to the Office of Lawyer Regulation and shall be maintained by it as confidential. ¶23 IT IS FURTHER ORDERED that Barry LeSieur shall, to the best of his ability, comply with all written recommendations set 9 No. 2007AP2763-D forth in the AODA evaluation, with the OLR to monitor Barry LeSieur's compliance. ¶24 IT IS FURTHER ORDERED that for two years following the date of this order, Barry LeSieur shall, at his own expense, submit to random alcohol and substance abuse screening, directed and monitored by the Office of Lawyer Regulation. ¶25 IT IS FURTHER ORDERED that within 60 days of the date of this order, Barry LeSieur shall pay to the Office of Lawyer Regulation the costs of this proceeding incurred through the filing of the referee's report. 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 Barry LeSieur to practice law in Wisconsin shall be suspended until further order of the court. 10 No. ¶26 ANN WALSH BRADLEY, J. 2007AP2763-D.awb (dissenting). Although I agree with the conditions of practice and costs imposed by the majority, I disagree with its determination as to the appropriate level of discipline. The majority concludes that a public reprimand is sufficient. Given the pattern of conduct and the state of the evidence, is too lenient. I think that a public reprimand I instead would impose a 60-day suspension of Attorney LeSieur's license. ¶27 Attorney LeSieur has been arrested five times for operating while under the influence of alcohol (OWI) and has three convictions for that offense. 1991. It resulted in a The first arrest was in conviction which apparently was overturned "on constitutional grounds."1 The second OWI arrest was from in 2001. The case was transferred Vilas County to another jurisdiction which did not pursue the prosecution.2 ¶28 The third, fourth, and fifth arrests resulted in three convictions in May 2003, May 2004, and October 2006. majority correctly after he agreed states: "On October to the consensual 28, private 2006, As the eight reprimand for days his second OWI conviction, Attorney LeSieur once again operated a 1 It appears from the record that "overturned on constitutional grounds" is Attorney LeSieur's description of what happened. There is no further evidence in this record which illuminates the history of that conviction. 2 Although there is little in the record about this case, it appears that it was transferred to tribal court jurisdiction in Lac Du Flambeau and not prosecuted. 1 No. 2007AP2763-D.awb motor vehicle while intoxicated and was arrested." op., ¶4. Majority It is this third conviction (fifth arrest) which is before us in the present disciplinary proceeding. ¶29 As reprimand part rather of its than rationale a private for imposing reprimand, a the public majority concludes that "it is clear that a private reprimand would not be sufficient to deter Attorney LeSieur from further alcoholrelated misconduct." Id., ¶17. I think that the majority is mistaken if it thinks that a public reprimand here is sufficient to deter further alcohol-related misconduct. ¶30 I see Disciplinary this case Proceedings as similar Against Wis. 2d 266, 766 N.W.2d 194. to Brandt, a 20:8.4(b) public which reprimand provided recent 2009 WI case 43, of 317 In that case, Attorney Brandt was also the subject of five OWI offenses. only our for in his part The majority imposed violation that it of is former SCR professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's fitness to practice as a lawyer.3 ¶31 the I dissented in Brandt. conduct and the equivocal Given the repeated nature of state 3 of the evidence on the One of the conditions of Attorney Brandt's continued practice of law was that he refrain from the consumption of alcohol. On June 4, 2010, the Office of Lawyer Regulation filed a report of Attorney Brandt's noncompliance with the no-alcohol condition. Attached to the report was a January 26, 2010 Minnesota District Court complaint indicating a pending action against Attorney Brandt who was charged with alcohol-related offenses. 2 No. 2007AP2763-D.awb question of maintaining sobriety, I thought that the discipline was too lenient. ¶32 Brandt, 317 Wis. 2d 266, ¶56. Those same reasons also apply here. I would impose a 60-day suspension of Attorney LeSieur's license. respectfully dissent. 3 Accordingly, I No. 1 2007AP2763-D.awb
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