Office of Lawyer Regulation v. Jane Edgar

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2012 WI 19 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 199AP62-D & 2002AP2962-D In the Matter of Disciplinary Proceedings Against Jane A. Edgar, Attorney at Law: Board of Attorneys Professional Responsibility, Complainant, v. Jane A. Edgar, Respondent-Appellant. In the Matter of Disciplinary Proceedings Against Jane Edgar, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jane Edgar, Respondent-Appellant. _________________________________________________ REINSTATEMENT PETITION OF EDGAR OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: March 1, 2012 2012 WI 19 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. Nos. 1999AP62-D & 2002AP2962-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Jane A. Edgar, Attorney at Law: Board of Attorneys Professional Responsibility, Complainant, v. Jane A. Edgar, FILED MAR 1, 2012 A. John Voelker Acting Clerk of Supreme Court Respondent-Appellant. In the Matter of Disciplinary Proceedings Against Jane Edgar, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jane Edgar, Respondent-Appellant. ATTORNEY reinstatement proceeding. Reinstatement denied. Nos. ¶1 report We review, pursuant to SCR 22.33(3),1 a PER CURIAM. filed on 1999AP62-D & 2002AP2962-D July 15, 2011, by Referee Hannah C. Dugan, recommending denial of Attorney Jane A. Edgar's petition for reinstatement of her license to practice law in Wisconsin.2 We adopt the referee's findings of fact and conclusions of law and agree that Attorney Edgar's license to practice law should not be reinstated at this time. We direct Attorney Edgar to pay the costs of the reinstatement proceeding, which totaled $7,597.25, as of August 3, 2011. ¶2 She Attorney Edgar was admitted to practice law in 1985. practiced March 22, in 1999, Milwaukee. for two She years was suspended for converting effective $11,000 that belonged to a client and an adverse party in a divorce action, for commingling her own funds and client funds in her law office business account, for making deposits into and disbursements from that account for personal expenses, and for having falsely certified that she had a trust account and that she maintained that trust account and bank records in compliance with the 1 SCR 22.33(3) provides as follows: "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." 2 By order dated December 1, 2011, the court dismissed Attorney Edgar's appeal from the referee's report because of Attorney Edgar's repeated failure to file a timely brief. Attorney Edgar's request to reopen her appeal was denied by order dated January 24, 2012. Accordingly, the court considers the report as if no appeal had been filed as provided in SCR 22.33. 2 Nos. applicable rules governing Disciplinary Proceedings the conduct Against 1999AP62-D & 2002AP2962-D of Edgar, attorneys. 230 In re Wis. 2d 205, 601 N.W.2d 284 (1999). ¶3 Subsequently, stipulation incidents for of Proceedings N.W.2d 817. an Attorney additional professional Against Edgar, Attorney Edgar one-year entered suspension misconduct. 2003 Edgar was WI 49, ordered In 261 to re into for other Disciplinary Wis. 2d 413, pay a 661 restitution totaling $4,625 to four former clients, and the court adopted conditions applicable to Attorney Edgar's reinstatement as follows: (1) that [Attorney] Edgar's reinstatement be contingent upon her demonstrating that she has her depression and any other emotional or psychological problems under control, by her submission to an independent medical examination (IME) by a health provider approved by the OLR, at her own expense; (2) that [Attorney] Edgar's licensure following reinstatement be conditioned on [Attorney] Edgar remaining in treatment as recommended by the IME and/or her therapist, monitored by the OLR via obtainment of quarterly reports for a period of two years following her reinstatement; (3) that [Attorney] Edgar's practice of law be monitored by an attorney approved by the OLR for a period of two years following reinstatement, unless [Attorney] Edgar is either employed by a law firm or practicing with another attorney aware of her disciplinary and medical history. Id., ¶12. ¶4 On September 21, 2010, Attorney Edgar filed a petition for reinstatement. The matter was assigned to Referee Hannah Dugan, who conducted an evidentiary hearing on May 23, 2011. 3 Nos. ¶5 license The standard is set petitioning forth to be in SCR attorney must met for 1999AP62-D & 2002AP2962-D reinstatement 22.31(1).3 demonstrate by In of a law particular, clear, the satisfactory, and convincing evidence that he or she has the moral character necessary to practice law in this state, 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 the attorney has complied with SCR 22.26 and the terms of the suspension. In addition, SCR 22.29(4) sets forth related requirements that a petition for reinstatement must show.4 3 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. 4 SCRs 22.29(4)(a) through (4m) provide as follows: (4) The petition for reinstatement shall show all of the following: (a) The petitioner desires petitioner's license reinstated. 4 to have the All Nos. 1999AP62-D & 2002AP2962-D (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 requirements set forth in SCR 22.26. with the (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. 5 Nos. of these additional requirements are 1999AP62-D & 2002AP2962-D effectively incorporated into SCR 22.31(1). ¶6 some The referee found that Attorney Edgar's petition met of the reinstatement criteria. reinstatement of her law license. practiced law since SCR 22.29(4)(b). the She does SCR 22.29(4)(a). suspension of her desire the She has not license in 1999. She provided the requisite information about her plans if she is reinstated, indicating that she would like to serve as a guardian ad potentially in family court. litem in children's SCR 22.29(4)(j). court and She has stated that she does not intend to return to private practice. ¶7 Attorney Edgar provided activities during her suspension. disabled and at son, volunteered her son's at school, information about her Attorney Edgar cared for her several held non-profit leadership organizations positions within several non-profit organizations which included managing funds, and was elected to the West Allis School Board. ¶8 Attorney Edgar has also complied with continuing legal education requirements, SCR 22.29(4)(d), and has made restitution or settled all claims of the four clients who were injured or harmed by her misconduct and who were included in the 2003 stipulated suspension order. ¶9 Edgar SCR 22.29(4m). Ultimately, however, the referee found that Attorney had failed reinstatement. Many to of meet the several of criteria are the criteria for interrelated, as evidenced by the referee's comments. The referee expressed an overriding in concern about the manner 6 which Attorney Edgar Nos. presented her reinstatement petition. Attorney Edgar presentation did and not follow refutation procurement and preparation. did not present witnesses According to the referee, basic of 1999AP62-D & 2002AP2962-D lawyering standards documentation or for witness More specifically, Attorney Edgar or exhibits either to support her petition or to refute an adverse exhibit offered by the OLR. The referee expressed concern that Attorney Edgar twice incorrectly stated that the sole issue before the referee was whether she satisfied the supreme court's order with respect to having her mental health explained: "In her issues demeanor under was control. both casualness The referee about the reinstatement process and an unsubstantiated confidence in her readiness to resume practice." ¶10 Indeed, presentation and the pro referee se found advocacy at that her Attorney Edgar's evidentiary hearing suggests that she cannot at this time meet the standards of SCR 22.26(g). ¶11 The referee also expressed concern about a pattern of incomplete disclosure. For example, Attorney Edgar had stated she was not party to any civil action, but it was determined that she had failure to several Similarly, several pay office Wisconsin Attorney civil judgments rent, failure Department Edgar of offered against her related to OLR costs, pay Revenue a written tax to and warrants. statement that "[s]ince my suspension, I have filed joint state and federal taxes with my husband each year in a timely fashion" but made no mention of the outstanding tax warrants and a current tax debt 7 Nos. of about $27,000 to $29,000. 1999AP62-D & 2002AP2962-D She also stated that she did not have information about her finances from 1997-1999, but it was later revealed that a Wisconsin Department of Revenue warrant for unpaid taxes was filed with the Milwaukee County Circuit Court and, as the referee noted, some financial could have been obtained from that case. information The referee noted Attorney Edgar failed "to understand that these unresolved civil lawsuits calls into question whether she, as a practitioner or as a lawyer susceptible to equivocation, can be safely recommended to the legal profession, the courts, and the public as a person fit to be consulted by others." ¶12 Thus, the referee concluded that Attorney Edgar did not present an appropriate attitude regarding the reinstatement process that would be considered in conformity with standards of the practicing bar. See SCR 22.29(4)(f). The referee noted that these omissions also raised concerns about Attorney Edgar's understanding of and attitude towards court proceedings, as well as toward future clients' needs and expectations. ¶13 The referee also found that Attorney Edgar has never been in full compliance with SCR 22.26. See SCR 22.29(4)(h). She did not provide any documentation demonstrating that she had complied with the rules requiring an attorney to notify clients of a suspension. The notice to clients that she described in her testimony did not comport with SCR 22.26. noted that oversights Attorney in this Edgar regard. appeared Thus, 8 The referee also unconcerned the referee about found her that Nos. Attorney Edgar failed to address the 1999AP62-D & 2002AP2962-D requirement that she about her demonstrate her compliance with this condition. ¶14 The referee also expressed some concern findings related to Attorney Edgar's handling of this court's order requiring payment of restitution to injured clients and OLR costs. is in The referee did find that Attorney Edgar currently compliance with that portion of the court's order. However, the referee noted the four clients only received their restitution in 2010, months reinstatement petition. before Attorney Edgar filed her Moreover, Attorney Edgar provided no documentation to substantiate the payment of restitution and no documentation or satisfactory explanation explain the delay in payment. was provided to No documentation was provided by either party that Attorney Edgar returned to the court to ask for an extension of time to pay the restitution or otherwise to waive payment. Indeed, the referee noted that one of the former clients had died and, therefore, never was directly provided restitution. The referee found further that Attorney Edgar seemed "unconcerned and unremorseful" about the payment delay. The referee found Attorney Edgar followed a similar pattern with respect to payment of the costs of the previous OLR disciplinary matter. ¶15 Thus, the referee's report and recommendation describe a pattern of shortcomings in Attorney Edgar's compliance with the requirements of suspension individually, might be excusable. and reinstatement that, taken Taken cumulatively, however, they caused the referee to conclude that Attorney Edgar does not 9 Nos. 1999AP62-D & 2002AP2962-D have a proper understanding of and attitude towards meeting the professional standards imposed on a member of the bar or an appreciation of the justification for the suspensions. Ultimately, the referee concluded Attorney Edgar did not carry her burden of proof with respect to the requirements of reinstatement set forth in the supreme court rules. ¶16 As noted, the court had also imposed additional requirements on Attorney Edgar's reinstatement, requiring her to demonstrate that her depression and other related issues are under control, as evidenced by her submission to an independent medical examination (IME) by a health provider approved by the OLR, at her own expense. ¶17 Attorney Edgar complied with this directive, but the medical evaluation was not received until about one week before the evidentiary hearing.5 once received, was not The referee found that the report, definitive. The report stated that Attorney Edgar's depression is under control, but the referee noted it did not explicitly conclude that her other "emotional or psychological problems are under control," a condition the court had explicitly imposed upon Attorney Edgar's reinstatement. ¶18 Attorney Edgar offered extensive testimony regarding the independent medical report. 5 The referee acknowledged that The referee noted that Attorney Edgar repeatedly expressed the desire to proceed with the evidentiary hearing despite indications there was insufficient evidence supporting her petition. 10 Nos. since her suspension, Attorney Edgar 1999AP62-D & 2002AP2962-D has addressed very challenging family health issues both her son's and her own. The referee found that through diligence and treatment compliance, she and her son are functioning with greater health and are leading productive lives. The referee acknowledged that Attorney Edgar disagreed with many aspects of the evaluation. However, the referee found that the report "cannot be ignored or found unsupportable," and Attorney Edgar presented no witnesses or documentation from her doctors that refuted certain conclusions in the IME. ¶19 Thus, the referee found that "it is apparent that [Attorney] Edgar has made significant progress in her mental health treatment with respect to her diagnosed depression," but she was not satisfied that Attorney Edgar had established that her other mental health related issues are sufficiently under control to satisfy court-ordered reinstatement requirements. ¶20 unless This court will adopt a referee's findings of fact they are clearly reviewed de novo. Eisenberg, 2004 WI erroneous. Conclusions of law are See In re Disciplinary Proceedings Against 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. After careful review of the record, we agree with the referee that Attorney Edgar has not established by clear, satisfactory, and convincing evidence that she criteria necessary for reinstatement. has satisfied all of the Accordingly, we adopt the referee's findings of fact and conclusions of law, and we accept the referee's recommendation to 11 deny this petition for Nos. reinstatement. 1999AP62-D & 2002AP2962-D We further direct Attorney Edgar to pay the full costs of the reinstatement proceeding. ¶21 IT IS ORDERED that the petition for reinstatement of the license of Jane A. Edgar to practice law in Wisconsin is denied. ¶22 IT IS FURTHER ORDERED that within 60 days of the date of this order, Jane A. Edgar shall pay to the Office of Lawyer Regulation the full costs of this proceeding. If the costs are not paid within the time specified and Jane A. Edgar has not entered into a payment plan approved by the Office of Lawyer Regulation, then the Office of Lawyer Regulation is authorized to move this court for a further suspension of the license of Jane A. Edgar to practice law in Wisconsin. 12 Nos. 1 1999AP62-D & 2002AP2962-D