                                                                 2014 WI 23

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2012XX605-BA
COMPLETE TITLE:         In the matter of the conditional admission of B.
                        R. C.

                        Board of Bar Examiners,
                                  Complainant-Respondent-Appellant,
                             v.
                        B. R. C.,
                                  Respondent-Petitioner-Respondent.



                                      BAR ADMISSION OF B.R.C.

OPINION FILED:          May 9, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:   ABRAHAMSON, C.J., did not participate.

ATTORNEYS:
                                                                             2014 WI 23
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.    2012XX605-BA


STATE OF WISCONSIN                                 :            IN SUPREME COURT

In the matter of the conditional admission of
B.R.C.

Board of Bar Examiners,                                                   FILED
            Complainant-Respondent-Appellant,
                                                                      MAY 9, 2014
      v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
B.R.C.,

            Respondent-Petitioner-Respondent.




      ATTORNEY reinstatement proceeding.                  Attorney's conditional

license reinstated.



      ¶1    PER CURIAM.         The Board of Bar Examiners (BBE) appeals

a   referee's    report    recommending      the       court    reinstate       B.R.C.'s

license    to   practice    law    subject    to       continued       monitoring        as

required by the terms of his conditional admission.                           B.R.C. is

currently suspended for failure to comply with certain terms of

his conditional admission.          We accept the referee's findings and

conclusion      that   B.R.C.     has   satisfied        character        and    fitness
requirements for purposes of bar admission in this state and we
                                                                                  No.        2012XX605-BA



reinstate B.R.C.'s license to practice law conditioned upon his

continued monitoring by the Wisconsin Lawyers Assistance Program

(WisLAP) until July 2, 2014.

      ¶2    This is the first time we have considered a petition

for   reinstatement           filed    by       a       lawyer      who     was     suspended          for

failure     to   comply        with        terms         of    the     lawyer's          conditional

admission.        In       2011,    the     court,        at     the       behest       of    the     BBE,

adopted    SCR    40.075,          authorizing           conditional             admission.            See

S. Ct. Order      08-13,        2011       WI       40    (issued         June    8,     2011,        eff.

June 8, 2011).             This rule affords certain bar applicants who

might otherwise have been denied admission to the bar because of

character and fitness concerns the opportunity to practice law

subject to various oversight mechanisms designed to protect the

public.     B.R.C. was one of the early beneficiaries of this new

rule.

      ¶3    B.R.C. graduated from a Wisconsin law school in the

spring of 2011, and sought bar admission.                                   Aspects of his bar

application, including a 2009 conviction for operating a motor
vehicle while intoxicated, raised character and fitness concerns

pertaining to his alcohol use.                       Following an evaluation, the BBE

offered     B.R.C.         conditional          admission.                 The     terms        of    his

conditional admission were set forth in a Consent Agreement For

Conditional       Admission           (Consent            Agreement).                  The      Consent

Agreement     provided         in     relevant            part      that     B.R.C.           would    be

conditionally admitted for a period of two years during which he

was   required        to    abstain        from      alcohol         use    and     to       submit    to
monitoring       by        WisLAP     to     ensure           his      compliance            with     the
                                                    2
                                                                           No.       2012XX605-BA



conditions       on   his    law    practice.             Pursuant        to       the    Consent

Agreement, B.R.C. agreed, among other things, "[t]o submit to

random     urinalysis       testing        for       alcohol      or     other        drugs      as

determined appropriate by the Coordinator."

      ¶4      On December 27, 2011, B.R.C. accepted the offer of

conditional admission and signed the Consent Agreement.                                    He was

sworn in on January 18, 2012, and began practicing law.

      ¶5      On March 1, 2012, B.R.C. met with WisLAP manager Linda

Albert     who    informed    him        that       he   also    needed        to    execute      a

separate      "monitoring      contract"             with       WisLAP.             The    WisLAP

Monitoring Contract contained some terms not mentioned in the

Consent     Agreement.1        B.R.C.          also      learned       that    he        could   be

required to submit to hair follicle testing, fingernail testing,

and   blood      testing,    which       are     more     expensive       than       the    urine

testing he had known would be required.                         B.R.C. refused to sign

the monitoring contract asserting that he should have been made

aware of the WisLAP requirements before he executed the Consent

Agreement.       The BBE was advised of B.R.C.'s refusal to sign the
monitoring contract on March 12, 2012.

      ¶6      On May 11, 2012, the BBE voted to rescind B.R.C.'s

conditional       admission        for    his       continued      refusal          to    sign    a

monitoring       contract     and        concomitant        failure           to     submit      to

monitoring.       The BBE requested this court issue an order to show

      1
       For  example,   the  monitoring   contract  contains  the
requirement that "[i]f leaving the area where he/she lives or
practices (e.g. vacation, etc.) interferes with the terms of the
Monitoring Contract, the Participant will obtain consent from
the Monitor and/or WisLAP staff before leaving."

                                                3
                                                                         No.     2012XX605-BA



cause as to why B.R.C.'s license should not be suspended.                                    The

order issued and, on June 27, 2012, B.R.C. filed a response

explaining          his    reasons       for    declining        to    sign     the     WisLAP

Monitoring Contract and asking the court to reconsider its order

to show cause.

       ¶7      By    order       dated   July       2,   2012,    this   court        informed

B.R.C. that his license would be suspended if he did not sign

the    WisLAP       Monitoring       Contract        within      14   days.      The    order

directed the BBE to reinstate B.R.C.'s conditional admission if

he    signed    the       monitoring      contract.         We    directed      the    BBE    to

ensure that applicants offered conditional admission receive a

copy    of     the        WisLAP     Monitoring          Contract      before     accepting

conditional admission.              The BBE has since revised its procedures

accordingly.

       ¶8      In July 2012, some six months after commencing the

practice of law, B.R.C. signed a monitoring contract.                                  On the

same day he signed the monitoring contract, B.R.C. received an

e-mail from WisLAP advising him that it had changed its third-
party administrator, requiring a new contract be executed, which

was    provided.           The     two   monitoring        contracts     were     identical

except for the name of the administrator and the initiation date

and completion date.               The dates on the first contract were from

January 18, 2012 through January 18, 2014.                             The dates of the




                                                4
                                                            No.    2012XX605-BA



replacement contract were from July 2, 2012 to July 2, 2014.

B.R.C. signed the second contract.           Monitoring commenced.2

      ¶9    Shortly after signing the contract B.R.C. noted and

challenged the revised completion date.             On July 20, 2012, the

BBE director sent a letter to B.R.C. stating:

           It is my understanding that you executed a
      monitoring contract with WisLAP on July 16, 2012. The
      initiation date of the monitoring contract is July 2,
      2012. Accordingly, you will be monitored for two
      years, from July 2, 2012, to July 2, 2014, which is
      the Board's intent. Subject to that understanding, I
      will advise the court that you are compliant and I
      will seek to withdraw the request for your suspension.
      However, if you are seeking to "post date" your
      monitoring agreement to January 18, 2012, I will ask
      the court to impose the suspension on your license.
      ¶10   B.R.C. timely replied to the BBE, arguing that he read

the   court's    order   to   impose   the     original   terms    such   that

monitoring would end in January 2014, not July 2014.               B.R.C. did

not address the fact that he had been practicing law for nearly

six months without submitting to the WisLAP monitoring expressly

required    by   his     conditional       admission.     The     BBE   sought



      2
       B.R.C. moved to strike from page one of the BBE's reply
brief the words "B.R.C. chose not to sign the agreement,"
arguing that B.R.C. had in fact signed both a monitoring
agreement and a revised monitoring agreement.       We held the
motion in abeyance pending our review of the record. We dismiss
the motion. The abbreviated chronological summary in the BBE's
reply brief did not adversely affect our consideration of
B.R.C.'s case.     The court was aware, prior to B.R.C.'s
suspension, that B.R.C. had signed two versions of the
monitoring agreement in the wake of the court's July 2012 order
and that B.R.C. later argued he was entitled to an earlier
termination date.

                                       5
                                                                         No.    2012XX605-BA



suspension.        B.R.C.        objected       to     the     suspension         request,

reiterating his interpretation of the court's order.

      ¶11   By order dated August 14, 2012, this court suspended

B.R.C.'s license to practice law in Wisconsin for his continued

refusal to abide by the terms of his conditional admission.3

      ¶12   On October 12, 2012, B.R.C. filed a petition seeking

reinstatement.        The BBE was directed to respond.                          Additional

filings     ensued.        The    BBE     recommended          B.R.C.'s         suspension

continue    for   one    year,    following          which    it    would       consider   a

reinstatement      petition        and     evaluate          his    eligibility         for

conditional admission, but only if he underwent a comprehensive

psychological evaluation including personality testing.

      ¶13   B.R.C.      opposed     the        request        for    a     psychological

evaluation and requested a hearing.                    We appointed Referee John

Nicholas     Schweitzer      to     consider          this     novel       reinstatement

petition.     Referee Schweitzer conducted proceedings culminating

in an evidentiary hearing on September 16, 2013.                               He filed a

report on October 16, 2013, recommending reinstatement subject
to B.R.C.'s continued monitoring by WisLAP until July 2, 2014,

and   recommending       B.R.C.    bear     the       costs    of    this       proceeding

consistent with SCR 40.075(5).

      ¶14   The BBE appeals.         The BBE asks this court to require a

comprehensive     psychological          evaluation      in     order      to    ascertain

      3
       Nearly one       year later, on August 6, 2013, B.R.C. objected
to the manner in        which his license suspension was identified on
the State Bar of        Wisconsin web site. We held the objection in
abeyance and now        dismiss it as moot in view of our decision in
this matter.

                                           6
                                                                 No.    2012XX605-BA



whether      other      conditions         may      be   warranted     prior      to

reinstatement.         If    the   court    deems    reinstatement     appropriate

now, the BBE asks the court to require monitoring for two years

following reinstatement.             B.R.C. asks the court to reinstate his

law license without any conditions.

      ¶15    We must determine whether B.R.C. has met his burden of

demonstrating     he    has    the    requisite      character   and   fitness   to

warrant reinstatement of his conditional license to practice law

in   Wisconsin.        The    referee    considered      B.R.C.'s    petition    for

reinstatement under SCR 40.064 and the guidelines established in

BA 6.02,5 BA 6.03,6 and SCR 22.29.7
      4
          SCR 40.06 provides, inter alia, that:

           (1) An    applicant  for   bar   admission  shall
      establish good moral character and fitness to practice
      law. The purpose of this requirement is to limit
      admission to those applicants found to have the
      qualities of character and fitness needed to assure to
      a reasonable degree of certainty the integrity and the
      competence of services performed for clients and the
      maintenance of high standards in the administration of
      justice.

             . . . .

           (3) An    applicant   shall  establish    to  the
      satisfaction of the board that the applicant satisfies
      the requirement set forth in sub. (1).       The board
      shall certify to the supreme court the character and
      fitness of qualifying applicants.     The board shall
      decline to certify the character and fitness of an
      applicant who knowingly makes a materially false
      statement of material fact or who fails to disclose a
      fact necessary to correct a misapprehension known by
      the applicant to have arisen in connection with his or
      her application.
      5
          BA 6.02 provides:

                                           7
                                                   No.        2012XX605-BA




     Relevant Conduct or Condition. The revelation of
discovery or any of the following should be treated as
cause for further inquiry before the Board decides
whether the applicant possesses the character and
fitness to practice law:

       (a) unlawful conduct

       (b) academic misconduct

     (c) false statements by the applicant, including
concealment or nondisclosure

     (d) acts           involving         dishonesty             or
misrepresentation

       (e) abuse of legal process

       (f) neglect of financial responsibilities

       (g) neglect of professional obligations

       (h) violation of an order of a court

     (i) evidence of mental or emotional impairments
substantial enough to affect the applicant's ability
to practice law

       (j) evidence of drug or alcohol dependency

     (k) denial of admission to the bar in               another
jurisdiction on character and fitness grounds

     (l) disciplinary action by a lawyer disciplinary
agency or other professional disciplinary agency of
any jurisdiction
6
    BA 6.03 provides:

     Use of Information.     The Board will determine
whether the present character and fitness of an
applicant qualifies the applicant for admission.   In
making this determination . . . the following factors
should   be   considered  in   assigning  weight  and
significance to prior conduct:

     (a) the    applicant's    age   at   the   time     of     the
conduct

                               8
                                                                             No.     2012XX605-BA



      ¶16      We affirm a referee's findings of fact unless they are

found     to    be    clearly        erroneous.           See      In       re     Disciplinary

Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,

740   N.W.2d 125;       see    also     In    re    Bar    Admission         of     Rusch,    171

Wis. 2d 523, 528-29, 492 N.W.2d 153 (1992).                                 We review legal

conclusions      de    novo.         Id.      This      court    retains          the   ultimate

authority to determine who should be admitted to the bar of this

state.      In re Bar Admission of Rippl, 2002 WI 15, ¶¶3, 16, 250

Wis. 2d 519, 639 N.W.2d 553.

      ¶17      Initially,      the    significant          issue       regarding        B.R.C.'s

character      and    fitness    to        practice     law      in    Wisconsin        was   his

alcohol use.          See BA 6.02 (j).             The referee noted that B.R.C.


               (b) the recency of the conduct

           (c) the reliability of the information concerning
      the conduct

               (d) the seriousness of the conduct

               (e) the mitigating or aggravating circumstances

               (f) the evidence of rehabilitation

           (g) the       applicant's           candor       in        the    admissions
      process

           (h) the   materiality                   of      any        omissions          or
      misrepresentations

           (i)    the           number         of         incidents              revealing
      deficiencies
      7
       Although the referee also considered the criteria set
forth in SCR 22.29, he determined that rule offered limited
guidance because it applies strictly to reinstatement following
a disciplinary revocation or suspension, which is always for a
specific period of time.

                                              9
                                                                     No.   2012XX605-BA



has participated in the WisLAP monitoring program, first under a

monitoring contract and later voluntarily, such that he has been

monitored    since      July   2012.        The    referee    found    that   by   all

indications,      B.R.C.    has      not    used   alcohol    since    entering      the

monitoring contract.8          The record supports these findings and we

accept them.

       ¶18   B.R.C.'s conduct during these proceedings led the BBE

to request a psychological evaluation, inclusive of personality

testing, the results of which would be utilized to determine

what, if any, additional conditions should be imposed on him.

The referee acknowledged that the BBE's concerns over B.R.C.'s

personality       and   psychological        health    are     understandable        but

ultimately concluded they are not "sufficiently well founded to

require him to submit to psychological testing."

       ¶19   On   appeal,      the    BBE    asks    the     court    to   require    a

psychological evaluation.              The BBE explains that it made this

request based on "a long series of events that have occurred

with B.R.C. over the course of the last two years" including
his:

       [R]efusal to sign the monitoring contract, his
       persistent belief and attempts at trying to negotiate
       the terms of his monitoring contract and its timeline,
       his lack of understanding and insight as to why the
       Court suspended him, his contrition towards his
       monitor, but the opposite behavior towards the manager

       8
       The parties have characterized B.R.C. as a "voluntary
participant" in the WisLAP monitoring program. He has checked
in more or less regularly and, as of the date of the hearing,
had been tested for alcohol in his system 26 times, with no
adverse result.

                                            10
                                                                     No.     2012XX605-BA


       of WisLAP, Ms. Albert, as well as his insistence that
       the Court and the BBE were persisting in violating his
       rights.
       ¶20    First, as the referee observed, this case is not about

whether the BBE's decision to offer B.R.C. conditional admission

was    appropriate.             Supreme     Court     Rule    40.075       provides    a

procedural mechanism for an attorney who wishes to challenge the

BBE's decision to offer conditional admission.                       B.R.C. did not

invoke       that    procedure.           Instead,    he     accepted      conditional

admission      and     became    subject      to    the    terms    of     the   Consent
Agreement which required monitoring by WisLAP.                       Because he did

not abide by those terms, the court ultimately suspended his

conditional license to practice law.                      All arguments pertaining

to whether the BBE erred in offering conditional admission are

superfluous; we will not address them.

       ¶21    The referee considered both the initial dispute over

signing the WisLAP Monitoring Contract and the ensuing dispute

over the end date for that contract.                       The referee noted that

WisLAP and the BBE found that B.R.C.'s repeated objections were

at    least    in     part   self-serving.           We    agree.        While   he   was
disputing the terms of his monitoring, B.R.C. kept practicing

law   for     some    six    months   with    no    monitoring      or    oversight   in

direct contravention of the essential terms of his conditional

admission.          With respect to the end date of his monitoring, it

begs credulity to think the court would simply excuse six months

of noncompliance with oversight the BBE had deemed necessary to

ensure he could be safely recommended to the public.



                                             11
                                                                             No.    2012XX605-BA



       ¶22    On      balance,        however,      the       referee        concluded         that

B.R.C.'s questions, conduct, and interpretation of this court's

July 2, 2012 order were not entirely unreasonable, finding that

there was "an element of principle" in his objections and noting

that    the     BBE      was   directed       to    revise      certain       parts       of   its

procedures as a result of this proceeding.                        We accept and affirm

the     referee's          findings          and    conclusions,             including         his

determination that the BBE's concerns are not sufficiently well

founded to demonstrate a need for a psychological evaluation.

We     therefore         decline        to    require          B.R.C.     to       undergo       a

psychological evaluation as a condition or prerequisite of his

reinstatement.

       ¶23    The     referee      opined      that     completion      of     the     two-year

monitoring       contract        scheduled         to   end     July    2,     2014,      was    a

sufficient condition to impose on B.R.C.'s reinstatement.                                       On

appeal, the BBE asks the court to require monitoring for two

years    from      the    date    of    reinstatement.            The   BBE        expresses     a

legitimate         concern       that    B.R.C.'s        voluntary       compliance            with
monitoring while suspended is not an accurate proxy for whether

he     can    manage      alcohol       together        with    the     stress       of    legal

practice.

       ¶24    We agree that B.R.C. must complete the full two years

of monitoring as his conditional admission originally required,

with a monitor located in the Milwaukee area, if possible.                                      At

this time, there is insufficient cause to warrant extending the

conditions         imposed       on     B.R.C.      past       July     2,     2014.            See
SCR 40.075(6).           If B.R.C. fails to comply with the terms of his
                                               12
                                                                            No.    2012XX605-BA



monitoring       contract       before     it    terminates,          the    parties     shall

immediately       advise       the    court      and   we      reserve       the    right     to

reconsider       this    decision.         However,       we     accept      the    referee's

conclusion that B.R.C. has demonstrated character and fitness

sufficient       to     warrant      his   admission        to   the     bar       subject    to

successful       completion          of    the     monitoring         contract.              Upon

completion       of     the     monitoring         contract      he     will       be   deemed

admitted, without conditions.

      ¶25    We caution B.R.C. that before he may practice law in

Wisconsin again he must ensure he has satisfied the requirements

applicable       to     all     attorneys        relating        to    continuing        legal

education (CLE), bar dues, assessments and fees.9                                   If B.R.C.

cannot     pay   the     full     costs     of     this     reinstatement          proceeding

immediately, an agreement may be reached with the BBE to enable

him to pay the costs over time.10

      ¶26    IT IS ORDERED that the conditional admission of B.R.C.

to   practice      law    in    Wisconsin        is    reinstated        subject        to    the

      9
       In its reply brief, the BBE advises the court that if
B.R.C. is readmitted in 2014, he will be required to comply with
the 2013-2014 CLE requirements by reporting 30 approved hours,
including three hours of ethics and professional responsibility;
or, if applicable, by electing the exemption available under
SCR 31.04 (2) for that reporting period. These are the standard
reporting requirements for anyone who was admitted to the
Wisconsin bar in 2012, and, more broadly, to those admitted in
even-numbered years.
      10
       On March 14, 2014, B.R.C filed a response to the
statement of costs asking that no costs be assessed. The BBE
then filed a reply on March 19, 2014, maintaining that full
costs are warranted.      We impose the full costs of this
proceeding consistent with SCR 40.075(5).

                                              13
                                                  No.   2012XX605-BA



requirement that B.R.C. shall comply with the remaining term of

the WisLAP monitoring contract that he signed in July 2012, with

a termination date of July 2, 2014.

    ¶27   IT IS FURTHER ORDERED that within 60 days of the date

of this order, B.R.C. shall pay to the Board of Bar Examiners

the costs of this proceeding, which are $4,752.65 as of March 4,

2014.

    ¶28   SHIRLEY S. ABRAHAMSON, C.J., did not participate.




                               14
    No.   2012XX605-BA




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