Board of Bar Examiners v. J.E.G.

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2015 WI 71 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2013AP1769-D & 2014XX817-BA In the Matter of Disciplinary Proceedings Against Jordan E. Gall, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jordan E. Gall, Respondent. In the Matter of the Conditional Admission of J.E.G.: Board of Bar Examiners, Complainant, v. J. E. G., Respondent. DISCIPLINARY PROCEEDINGS AGAINST GALL OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: July 9, 2015 2015 WI 71 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. No. 2013AP1769-D 2014XX817-BA STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Jordan E. Gall, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Jordan E. Gall, FILED Respondent. JUL 9, 2015 In the Matter of the Conditional Admission of J.E.G.: Diane M. Fremgen Clerk of Supreme Court Board of Bar Examiners, Complainant, v. J. E. G., Respondent. ATTORNEY disciplinary reprimanded and motion denied. proceeding. Attorney publicly No. No. ¶1 PER CURIAM. 2013AP1769-D 2014XX817-BA In this reciprocal discipline matter, we consider whether we should publicly reprimand Attorney Jordan E. Gall as discipline reciprocal to that imposed by the Supreme Court of Minnesota. of Bar Examiners directing practice (BBE) Attorney law in We also address a motion filed by the Board asking Gall to Wisconsin this show court cause should not to why be issue his an order license suspended for to his alleged willful failure to comply with the conditions set forth in the Consent Agreement for Conditional Admission dated August 29, 2011, and a motion to seal all filings related to the conditional admission motion. ¶2 After reviewing these matters, and in light of Attorney Gall's failure to respond to our order to show cause, we conclude that Attorney Gall should be publicly reprimanded in this state for the misconduct that has already resulted in a public reprimand in Minnesota. We further conclude, however, in light of the manner in which the Supreme Court of Minnesota addressed Attorney Gall's disciplinary case, that there is no need to issue an order to show cause to Attorney Gall regarding his conditional admission in this state. BBE's motion requesting such an order. We therefore deny the We also deny the BBE's motion to seal all filings regarding the conditional admission, determining that the interweaving of the disciplinary matter and the conditional admission matter require public disclosure of the fact of Attorney Gall's conditional practice of law in this state. 2 admission to the No. No. ¶3 2013AP1769-D 2014XX817-BA Attorney Gall was admitted to the practice of law in this state in September 2011. In March 2011 Attorney Gall had been conditionally admitted to the practice of law in Minnesota. At the time of the Minnesota public reprimand, the Minnesota disciplinary documents indicate that he was practicing law in Plymouth, Minnesota. The most recent address that Attorney Gall has provided to the State Bar of Wisconsin is a law firm in Minneapolis. ¶4 Attorney Gall has not previously been the subject of professional discipline in Wisconsin. law in this state, administrative however, suspensions for His license to practice is failure currently to pay subject bar dues to and assessments, for noncompliance with his obligation to report his attendance at continuing legal education, and for failure to file an annual trust account certification. ¶5 In the disciplinary proceeding, the Office of Lawyer Regulation (OLR) filed a complaint, an order to answer, and a motion requesting Attorney Gall predicated to upon that inform the this court issue the court in grounds set forth an writing in order of Supreme directing any claim, Court Rule (SCR) 22.22(3),1 that the imposition of discipline identical to 1 SCR 22.22(3) provides as follows: The supreme court shall impose the identical discipline or license suspension unless one or more of the following is present: (continued) 3 No. No. 2013AP1769-D 2014XX817-BA that previously imposed in Minnesota would be unwarranted, and of the factual basis for any such claim. The OLR was unable to serve a copy of the complaint and order to answer personally on Attorney Gall. Ultimately, it accomplished service on Attorney Gall by sending by certified mail an authenticated copy of the complaint and order to answer to the most recent address that Attorney Gall pursuant to had provided SCR 22.13(1). to the The State court then Bar of Wisconsin, granted motion and issued the requested order to show cause. Gall did not respond to the order to show cause. the OLR's Attorney He also has not filed an answer or other response to the OLR's complaint. ¶6 The facts set forth below are OLR's complaint and the BBE's motion. taken from both the Attorney Gall has not disputed the facts set forth in either the complaint or the motion. ¶7 The OLR's complaint alleges that on May 16, 2013, the Supreme Court of Minnesota publicly reprimanded Attorney Gall. The OLR attached copies of the Minnesota order, the petition for (a) The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process. (b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the supreme court could not accept as final the conclusion in respect to the misconduct or medical incapacity. (c) The misconduct justifies different discipline in this state. 4 substantially No. No. 2013AP1769-D 2014XX817-BA disciplinary action, and Attorney Gall's stipulation, in which he unconditionally admitted the allegations of the petition for disciplinary action and agreed to request the imposition of a public reprimand. ¶8 The facts underlying Attorney Gall's public reprimand involved his failure to comply with the Consent Agreement for Conditional Admission to the practice of law in Minnesota (the Minnesota Agreement) and his false statements to the Minnesota lawyer regulatory authorities. ¶9 Specifically, the Minnesota Agreement, which Attorney Gall executed with the Minnesota Board of Law Examiners (MBLE) in March 2011, contained a requirement that Attorney Gall comply with the conditions of probation imposed in November 2010 as a result of a conviction for Fourth Degree Driving While Intoxicated. One of those conditions was a requirement that for a two period license of years violations. Attorney Gall compliance to with all Attorney The Minnesota submit of Gall terms have reports and no driver's also Agreement quarterly the would required detailing conditions of his that agreement, as well as to submit narrative statements detailing the steps he was taking to support his decision to abstain from alcohol. effect The Minnesota Complaint provided that it would be in for a period of two years (until March 2013). The agreement also stated, however, that if a complaint was filed with the Minnesota Office of Lawyers Professional Responsibility during the term of the agreement, then the period of conditional 5 No. No. admission would complaint. be extended until the 2013AP1769-D 2014XX817-BA disposition of that Once Attorney Gall signed the Minnesota Agreement, he was admitted to the practice of law in that state. ¶10 The BBE's motion alleges that Attorney Gall signed a similar Consent Agreement for Conditional Wisconsin Agreement) in August 2011. provided that Minnesota its duration Agreement, but would that Admission (the The Wisconsin Agreement be the coterminous period of with the conditional admission in this state could be extended under SCR 40.075(6) and (8). In addition to requiring Attorney Gall to obey all laws rules and governing the active practice of law, the Wisconsin Agreement also mandated that Attorney Gall comply with all of the terms and conditions of the Minnesota Agreement. ¶11 Contrary to Attorney Gall's probation and his conditional admission agreements in both states, he was cited for 11 traffic September 2012. instances of violations citations, Among failing one to instance in the those obey of a period traffic traffic illegal or from June violations sign, three improper 2011 were to two speeding passing, and three occasions on which Attorney Gall was found to be driving after the suspension of his driver's license. He failed to report any of these infractions to the MBLE, which constituted a violation of his conditional admission consent agreements. In addition, Attorney Gall also violated the Minnesota Agreement and applicable ethics rules by 6 submitting multiple quarterly No. No. 2013AP1769-D 2014XX817-BA reports falsely stating that he had abided by all laws and was in compliance with the conditions of his criminal probation. ¶12 On the basis of the stipulation of facts executed by Attorney Gall, the Supreme Court of Minnesota issued an order publicly reprimanding him and placing him on disciplinary probation for a period of two years with a number of conditions. In re Disciplinary Action Against Gall, 830 N.W.2d 441 (Minn. 2013). Those abstinence conditions from alcohol included and other maintaining complete non-prescription, mood- altering chemicals, submitting to random urinalysis screenings, and abiding by all laws. The Supreme Court of Minnesota's order, however, did not contain any provisions regarding the extension of the Minnesota Agreement or regarding the authority of the MBLE to extend the agreement, which would have expired, according to its terms, at the conclusion of the Minnesota disciplinary proceeding. ¶13 Under SCR 22.22(3), this court shall impose the identical discipline imposed by the other jurisdiction unless one or more of three exceptions are present. The first two exceptions involve situations where the disciplinary proceeding in the other jurisdiction deprived the respondent attorney of due process or suffered from a lack of proof. (b). The third exception to the SCR 22.22(3)(a)- imposition of reciprocal discipline applies where the misconduct justifies substantially different discipline in Wisconsin. 7 SCR 22.22(3)(c). No. No. ¶14 2013AP1769-D 2014XX817-BA Attorney Gall has not responded to our order to show cause and argued that one or more of these three exceptions are applicable to his case. Our own review of the matter does not indicate that any exception applies to this matter. ¶15 Accordingly, we will publicly reprimand Attorney Gall as discipline reciprocal to that imposed by the Supreme Court of Minnesota. of Although that court also imposed a two-year period probation in its disciplinary similar period of probation. order, we do not impose a Probation is not one of the forms of discipline that this court generally imposes. Where another jurisdiction has imposed a period of probation in a reciprocal discipline context, we have replicated the effect of such probation by ordering the respondent attorney to comply with the probationary order entered in the other jurisdiction. See, e.g., In re Disciplinary Proceedings Against Moree, 2004 WI 118, 275 Wis. 2d 279, 281, 684 N.W.2d 667 (published order). We will follow that practice here. ¶16 Attorney We now turn to the BBE's motion. Gall's Minnesota public The BBE learned of reprimand and two-year disciplinary probation within a few days after the Minnesota disciplinary conducted an order had annual been review issued of 8 in May Attorney 2013. Gall's The BBE conditional No. No. 2013AP1769-D 2014XX817-BA admission to the practice of law in Wisconsin in October 2013.2 It voted at that time to extend the Wisconsin Agreement for two more years.3 ¶17 Following the BBE's vote, the BBE's executive director wrote to Attorney Gall to inform him of the BBE's action and to request that he either sign an amended Wisconsin Agreement or advise that he did not wish to do so. Attorney Gall did not respond. after He also did not respond two subsequent communications requesting execution of the amended agreement. ¶18 The BBE ultimately voted to find Attorney Gall to be non-compliant with the Wisconsin Agreement and voted to revoke that agreement. Following one last communication warning Attorney Gall that the BBE would seek the suspension of his license to practice law in Wisconsin, to which Attorney Gall still did not respond, the BBE filed its motion asking for an 2 It is not clear whether the Wisconsin Agreement was still in effect at this time. It appears from the filings of the OLR and the BBE that the Minnesota Agreement, pursuant to its terms, would have expired, at the latest, at the conclusion of the Minnesota disciplinary proceeding in May 2013. Since the terms of the Wisconsin Agreement provided that its duration was coterminous with the Minnesota Agreement, it is unclear whether the Wisconsin Agreement would have remained in effect beyond May 2013. 3 It is also unclear from the BBE's filings whether this extension was to be measured from March 2013 (when the Minnesota Agreement was initially to have expired), from May 2013 (when the Minnesota Agreement would have expired upon completion of the Minnesota disciplinary proceeding), or from October 2013 (when the BBE voted for the extension). 9 No. No. 2013AP1769-D 2014XX817-BA order to show cause, and ultimately the suspension of Attorney Gall's license to practice law in Wisconsin. ¶19 We conclude that the BBE's motion should be denied. According to the materials submitted to this court regarding the response of the Supreme Court of Minnesota and its applicable agencies to Attorney Gall's misconduct, it appears that Minnesota addressed the misconduct solely through the means of the public reprimand and the disciplinary probation imposed by the Supreme Court of Minnesota. There is no indication that Attorney Gall was required to sign a new or amended Minnesota Agreement or that his Moreover, the BBE has Agreement remained in conditional not admission demonstrated effect beyond the was the that extended. Minnesota completion Minnesota disciplinary proceeding in May 2013. of the It also has not shown why the Wisconsin Agreement would have remained in effect beyond the effective term of the Minnesota Agreement. In any event, we conclude that the matter of Attorney Gall's misconduct was sufficiently addressed by the Minnesota public reprimand and disciplinary probation, which is being imposed in this state via the reciprocal discipline procedure. ¶20 IT reprimanded IS for ORDERED his that Jordan professional E. Gall misconduct is as publicly reciprocal discipline to that imposed by the Supreme Court of Minnesota. Jordan E. Gall's license to practice law in Wisconsin remains administratively suspended. 10 No. No. ¶21 2013AP1769-D 2014XX817-BA IT IS FURTHER ORDERED that Jordan E. Gall shall comply with the terms and conditions of the disciplinary probation set forth in the May 16, 2013 order Minnesota and any subsequent orders. of the Supreme Court of In re Disciplinary Action Against Gall, 830 N.W.2d 441, 441-42 (Minn. 2013). ¶22 IT IS FURTHER ORDERED that the director of the Office of Lawyer Regulation shall advise the court if there has not been full compliance with all conditions of this order. ¶23 IT IS FURTHER ORDERED that in In re Conditional Admission of J.E.G., No. 2014XX817-BA, the motion of the Board of Bar Examiners for the issuance of an order to show cause is denied. 11 No. No. ¶24 ANN WALSH dissenting in part). reprimand as BRADLEY, J. 2013AP1769-D.awb 2014XX817-BA.awb (concurring in part, I agree with the imposition of a public reciprocal discipline Supreme Court of Minnesota. to that imposed by the However, for the protection of the public, more is needed. ¶25 In addition to the public reprimand, I would grant the motion of the Board of Bar Examiners for the issuance of an order to show cause why the license of Attorney Jordan E. Gall to practice law in Wisconsin should not be suspended for his alleged willful failure to comply with the conditions set forth in the Consent Agreement for Conditional Admission dated August 29, 2011. ¶26 I am authorized to state that ABRAHAMSON joins this concurrence/dissent. 1 Justice SHIRLEY S. No. No. 1 2013AP1769-D.awb 2014XX817-BA.awb