                                                             2020 WI 59

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2019AP1974-BA


COMPLETE TITLE:        In the Matter of the Bar Admission of David E.
                       Hammer:

                       David E. Hammer,
                                 Petitioner,
                            v.
                       Board of Bar Examiners,
                                 Respondent.

                               BAR ADMISSION OF DAVID E. HAMMER

OPINION FILED:         June 25, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam.
NOT PARTICIPATING:



ATTORNEYS:


       For the petitioner, there were briefs filed by David E.
Hammer, Tampa, Florida. There was an oral argument by David E.
Hammer.

       For the respondent, there was a brief filed by Jacquelynn
B. Rothstein, Director and Legal Counsel. There was an oral
argument by Jacquelynn B. Rothstein.
                                                                              2020 WI 59
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2019AP1974-BA


STATE OF WISCONSIN                                 :            IN SUPREME COURT

In the Matter of the Bar Admission
of David E. Hammer:

David E. Hammer,                                                          FILED
                Petitioner,                                          JUN 25, 2020
      v.                                                                Sheila T. Reiff
                                                                     Clerk of Supreme Court
Board of Bar Examiners,

                Respondent.




      Review      of    Board    of   Bar   Examiners'        decision.         Decision

affirmed.


      ¶1        PER CURIAM.       This is a review, pursuant to Supreme

Court Rule (SCR) 40.08(7), of a final decision of the Board of

Bar Examiners (Board) declining to certify that the petitioner,

David      E.     Hammer,       satisfied    the       character        and      fitness

requirements for admission to the Wisconsin bar set forth in

SCR 40.06(1).          The Board's decision was based primarily on the

fact that Mr. Hammer, who was a licensed Florida lawyer from

2006-2011, was disbarred in Florida for trust account violations
and misappropriation of client funds.
                                                   No.   2019AP1974-BA



    ¶2   Mr. Hammer resides in Florida.      He graduated from the

University of Florida Levin College of Law in 2005 and completed

an LL.M. in Taxation in 2006.       He was admitted to the Florida

bar on May 19, 2006.   From his admission in May 2006 until his

law license was suspended on August 23, 2010, Mr. Hammer had

what he describes as "an ill-advised solo practice" in Florida,

built around a single client group: the family and friends of

Paul Bilzerian and their companies.1    As relevant here, in 2001,

long before Mr. Hammer ever worked for the Bilzerian client

group, a federal district court issued a sweeping injunction

limiting Bilzerian's access to the courts, in an effort to stem

Bilzerian's frivolous court filings (2001 Injunction).      The 2001

Injunction provides:

    Paul A. Bilzerian, his agents, servants, employees and
    attorneys, and those persons in active concert or
    participation with them, who receive actual notice of
    this Order by personal service or otherwise, are
    prohibited from filing or causing the filing of any
    complaint, proceeding or motion in the United States
    Bankruptcy Court for the Middle District of Florida,
    or   from   commencing   or   otherwise  causing   the
    commencement of any proceedings in any court, other
    than in this Court or in appeals of this Court's
    Orders to the United States Court of Appeals for the
    District of Columbia, without prior application to and
    approval of this Court . . ..


    1  Bilzerian was convicted of securities fraud and conspiracy
to defraud the United States in 1989.          United States v.
Bilzerian, 926 F.2d 1285 (2d Cir. 1991) (affirming conviction).
The Securities and Exchange Commission then filed a civil suit
against him in the summer of 1989 and obtained a judgment for
approximately $62 million.    S.E.C. v. Bilzerian, 29 F.3d 689
(D.C. Cir. 1994) (affirming judgment).



                                2
                                                      No.     2019AP1974-BA



Mr. Hammer acknowledges that he received actual notice of the

2001 Injunction in December 2006.

     ¶3    We focus on the Board's primary reason for declining

to certify Mr. Hammer.     On August 23, 2010, four years after his

admission to practice law, the Supreme Court of Florida issued

an   emergency   suspension   against   Mr.    Hammer's     law   license,

alleging that    he   had misappropriated     client trust funds.        A

formal disciplinary complaint followed.        Eventually, Mr. Hammer

stipulated that in November 2009, Bilzerian had directed that

certain outstanding invoices and cost reimbursements not be paid

to Mr. Hammer.    Mr. Hammer believed these amounts were valid and

owed to him.     At the time, Mr. Hammer had access to funds in a

trust account belonging to another Bilzerian-related entity.            In

January 2010,    Mr. Hammer   began taking money from that trust

account for his own personal use.           In May 2010, the client

requested the money held in trust.      By then, the trust fund was

approximately $27,000 short of funds.          To replace the missing

client funds, Mr. Hammer accessed funds from another account to

which he was a signatory, paying himself director fees and other

amounts.

     ¶4    On August 30, 2011, the Florida Supreme Court issued

an order disbarring Mr. Hammer, nunc pro tunc to September 22,

2010,




                                  3
                                                                     No.    2019AP1974-BA



for    misappropriating       client      funds.2       Eventually,         Mr.   Hammer

distanced himself from the Bilzerian client group, started a

business,     regained       financial          stability,    and      became       chief

information officer of Elevant, an entity that licenses a case

management software program.

       ¶5    On January 1, 2018, Mr. Hammer applied for admission

to    the    Wisconsin      bar.       In       February     2018,     he    took    and

subsequently passed the Wisconsin bar exam.                          On January 15,

2019, the Board advised Mr. Hammer that his bar application was

at    risk   of   being     denied   on     character      and    fitness      grounds.

Mr. Hammer, by counsel, requested a hearing and in May 2019,

Mr. Hammer also voluntarily commenced an ethics tutorial with

Wisconsin Attorney Dean R. Dietrich.

       ¶6    On August 2, 2019, the Board conducted a hearing at

which Mr. Hammer appeared by counsel and testified.                          The Board

also heard testimony from Mr. Hammer's prospective employers,

who advised the Board that they will employ Mr. Hammer as an

attorney     if   he   is   admitted      to    the   Wisconsin      bar.      Attorney



       Meanwhile, on January 21, 2011, Mr. Hammer was publicly
       2

reprimanded by the Florida Supreme Court for actions in both
state and bankruptcy courts that he knew or should have known
were not meritorious but merely disruptive to the tribunals.
Board Order, ¶12.

     On March 31, 2011, the Florida Supreme Court further
suspended Mr. Hammer's law license for 91 days, concurrent with
his underlying suspension in the misappropriation matter, based
on Mr. Hammer's failure to demonstrate that he had notified
clients, opposing counsel, and tribunals of his license
suspension. Board Order, ¶13.



                                            4
                                                                   No.     2019AP1974-BA



Dietrich    testified      in   support      of    Mr.   Hammer's    character      and

fitness to practice law in Wisconsin.

    ¶7      On September 19, 2019, the Board issued an adverse

decision concluding that Mr. Hammer had failed to demonstrate to

the Board's satisfaction that he has the necessary character and

fitness    to   practice    law   in    Wisconsin.           The   Board    cited   Mr.

Hammer's Florida disbarment; abuse of process; extensive traffic

record; and its conclusion that Mr. Hammer failed to demonstrate

significant rehabilitation.            The Board added that Mr. Hammer has

not reapplied to the Florida bar.

    ¶8      This petition followed.               Mr. Hammer asks this court to

reverse the Board's adverse decision and permit him to become a

member of the Wisconsin bar.            He indicates that he would accept

conditions on his law practice.               In his initial brief Mr. Hammer

presents three issues:

    (1) Whether Hammer satisfies               the character and fitness
    requirements of SCR 40.06,                  as interpreted by this
    Court's prior decisions, or                Hammer should be forever
    banned from practicing law in              the State of Wisconsin;

    (2) Whether the conclusions of the [Board] that Hammer
    does not satisfy the requirements of SCR 40.06 are
    mere   pretext  for   unconstitutional  discrimination
    against a resident of Florida; and

    (3) Whether the [Board] committed clear error in
    reaching certain Findings of Fact, based on the record
    evidence.
    ¶9      This    court       has    the        ultimate    responsibility        for

admission to the Wisconsin bar.                In re Bar Admission of Rippl,

2002 WI 15, ¶16, 250 Wis. 2d 519, 639 N.W.2d 553.                            When, as
here, we review an adverse determination, the court adopts the


                                          5
                                                                         No.     2019AP1974-BA



Board's findings of fact that are not clearly erroneous.                                   Id.

The    court        then     determines,            de novo,      whether      the    Board's

conclusions         of     law,    based       on       the   non-erroneous      facts,    are

proper.       Id.        When conducting our de novo review, we, like the

Board, use the guidelines established in Bar Admission Rules

(BA) 6.01-6.03.3

       ¶10        Supreme Court Rule 40.06(1)4 requires that applicants

for bar admission establish good moral character and fitness to

practice law.            The burden rests with the applicant to establish

character and fitness to the satisfaction of the Board.                                    See

SCR 40.06(3) and SCR 40.07.                     Bar Admission Rule 6.01 provides

that "[a] lawyer should be one whose record of conduct justifies

the    trust       of    clients,        adversaries,          courts   and     others    with

respect to the professional duties owed to them."                              Bar Admission

Rule       6.02    provides       that    in   determining        whether      an    applicant

possesses the necessary character and fitness to practice law,

12 factors constitute "cause for further inquiry."                             In assigning

weight and significance to these 12 factors the Board is to


       The Appendix to SCR ch. 40 contains the Board's rules that
       3

provide additional guidance to the Board and to applicants.
       4   SCR 40.06(1) provides:

            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.



                                                    6
                                                                  No.     2019AP1974-BA



consider additional information set forth in SCR ch. 40 App., BA

6.03.5

       ¶11      It is undisputed that the Supreme Court of Florida

disbarred       Mr.    Hammer     in    2011.    Supreme    Court       Rule 40.06(4)

provides that suspension or revocation in another jurisdiction

is a sufficient basis for denial of certification.6                           Arguably,

this       is   the    end   of   our    inquiry.      However,      neither     party

considered       this    rule     dispositive    so   we   address      the   parties'

arguments.

       ¶12      We begin by evaluating whether the factual findings

underlying       the    Board's     decision    are   clearly   erroneous.         Mr.

       The Board considers the 12 factors that constitute cause
       5

for further inquiry in light of: (a) the applicant's age at the
time of the conduct; (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; and (i) the
number of incidents revealing deficiencies.   SCR ch. 40 App.,
BA 6.03.
       6   SCR 40.06(4) provides:

            The board shall not certify an applicant while an
       attorney disciplinary matter against the applicant is
       pending   or   the   applicant  is  certified  by   the
       department of workforce development as delinquent in
       making court-ordered payments of support or failing to
       comply with a subpoena or warrant, as those terms are
       defined in SCR 11.04(1). If an applicant's license to
       practice law in another jurisdiction is suspended or
       revoked    for    reasons   related   to   professional
       responsibility at the time the application is filed or
       at any time that the application is pending, the
       suspension or revocation is a sufficient basis for
       denial of certification.



                                            7
                                                                          No.    2019AP1974-BA



Hammer takes issue with many of the Board's factual findings but

ultimately      acknowledges       that         none      of     the    alleged         factual

discrepancies would have altered the Board's decision.                                   Hammer

Br. at 34, fn. 2.          Several of his objections can be broadly

characterized     as    relating      to    imprecise            rhetoric       used    by    the

Board to describe his past conduct.                    These include:

     An    objection    to     the     Board's           finding       that     there       were

      companies from whom Mr. Hammer "converted money. . . ."

      Board Order, ¶14 (emphasis added).                         Mr. Hammer says there

      was never a finding that he "converted" money.

     An objection to the Board's statement that "[Hammer] was

      also a signatory on another account, [owned by Hammer's]

      client . . .."       Board Order, ¶7.                  Mr. Hammer clarifies he

      did not take the money used to reimburse another client

      from a client's account.

     An objection to the Board's statement that in March 2011 he

      was   suspended     for    failure          to      notify       clients,        opposing

      counsel,    and    tribunals         of    a    license      suspension.            Board

      Order, ¶13.        Mr.    Hammer          clarifies        that     he    did     provide

      notice of his suspension.                  He failed to timely submit the

      affidavit     confirming          that         he    had     made        the     required

      notifications to the Florida bar.

     An objection to the Board's characterization of his driving

      record,    e.g.,    that     he      "was       most     recently         cited    for    a

      speeding offense in 2017."                  Board Order, ¶21.                  Mr. Hammer
      says the 2017 incident wasn't a speeding offense but rather



                                            8
                                                                          No.      2019AP1974-BA



       a   "Violation       of    the     Rules    of    the      Pennsylvania           Turnpike

       Commission."         He objects to the Board's statement that he

       "reported having his driving privileges suspended nineteen

       (19)    times."            Mr.     Hammer    clarifies           that       16    of      the

       suspensions         were     for     failure          to   timely        pay       traffic

       citations.          He also observes that various Board members

       made    statements         during     his     hearing        implying            that     his

       driving record was a trivial or even amusing matter.

       ¶13    Mr. Hammer also challenges the factual basis for the

Board's legal conclusion that Mr. Hammer engaged in "abuse of

process," a stated "cause for further inquiry."                                    SCR ch. 40

App., BA 6.03(e).           The Board found that he used a 2013 Chapter

13    personal      bankruptcy      proceeding          to    forestall         his      family's

eviction      from    their       home.      Board       Order,        ¶18.        Mr.       Hammer

explains      that    no    eviction        was     pending        when       he    filed        his

bankruptcy petition.              He states that he felt compelled to file

the    bankruptcy      petition         because      of      another      existing             legal

dispute.       He    also    defends       his     decision       to    commence         a     civil

lawsuit in 2010 against 32 defendants, which the Board described

as abuse of process, finding it alleged "fantastical claims."

       ¶14    We need not decide whether the Board committed clear

error in characterizing these two incidents as abuse of process.

There is ample evidence to support the Board's conclusion that

Mr. Hammer engaged in abuse of process, as evidenced by having

been found in civil contempt.                     See, e.g., S.E.C. v. Bilzerian,
729 F. Supp. 2d 9 (D.D.C. 2010).                        In that opinion, the court



                                              9
                                                                             No.      2019AP1974-BA



relates    that       Mr.     Hammer       was       found     in    civil         contempt      for

violating       the    2001     Injunction            for    his     role       commencing       and

prosecuting       several       lawsuits         on     behalf       of     Bilzerian.           The

federal    court       ordered       Mr. Hammer         to    purge       his      contempt      "by

ceasing his representation of Bilzerian in any capacity in any

litigation matters and withdrawing as counsel, if listed as

counsel    of     record,      in    any    of        the    above    cases."           Id. at     2

(citing Mem. Order and Op. 11, August 12, 2009, 641 F. Supp. 2d

16   (D.D.C.      2009),      ECF    No.     1053).           The     federal         court     also

ordered    Mr.     Hammer       to   file        a    sworn       statement        that    he   had

complied with the order within ten days.                                  Id.      Instead, Mr.

Hammer waited 15 days to file a sworn statement that said,

among     other       things,       that    "he        has    never        represented          Paul

Bilzerian."            Statement       of    Compliance,             May        26,   2009,     ECF

No. 993.        The    federal       court       stated:       "That       outright       lie    was

paradigmatic          of    Hammer's         habit           of      misleading           courts."

Bilzerian, 729 F. Supp. 2d at 11.                            The federal court offered

other examples:

      [Mr. Hammer] told Judge Paskay of the Bankruptcy Court
      for the Middle District of Florida that the show cause
      proceedings in this Court had already concluded, when
      in fact they were still under advisement.         Paskay
      Order 12, ECF No. 980.       Judge Paskay found that
      Hammer's "blatant disregard" of the Court's order was
      "typical   and  additional   proof   of   Mr.   Hammer's
      litigious nature...."    Id.    In a separate matter,
      Judge   Paskay  characterized    Hammer's   conduct   as
      "obstructive, defiant and inappropriate" and his suit
      as an "unethical use of the legal system." See Docket
      19, ECF No. 1029. Judge Paskay is not the only judge
      who has found it necessary to reprimand Hammer,
      though. Judge Martha J. Cook, in the Thirteenth


                                                 10
                                                              No.    2019AP1974-BA



      Circuit, Hillsborough County, Florida, has labeled
      Bilzerian    and    Hammer's     conduct   "egregious,"
      "sanctionable," and "clearly unethical." Cook's Order
      10, 12, ECF No. 951.    She went on to say that Hammer
      had    participated    in    "sandbagging,   disrupting
      discovery, and walking down a road that would get him
      in a lot of trouble." In light of all this, she was
      "inclined to order him to attend peer review or some
      sort of remedial training." Id. at 9-12.
Id.

      ¶15   On July 13, 2010, the federal court held Mr. Hammer in

civil   contempt    for   the    second     time   for   violating        the   2001

Injunction.        Id.    (citing      Mem. Op., 729     F.   Supp.       2d at 2-

3, 2010 WL 2771844 at *1).        The federal court once again ordered

Mr. Hammer to purge his contempt and ordered him to file a sworn

statement   affirming     that    he   had    complied    with      the    court's

conditions.     Id.       Mr.    Hammer     waited   nearly    a    year    before

informing the federal court that he had complied and then asked

the federal court to vacate the contempt finding. The federal

court declined.      Although Mr. Hammer's law license was, by then,

already suspended, the federal court stated:

      It is true that Hammer, dispossessed of his Bar
      license, is a much less serious threat to this Court's
      [2001 Injunction]. Still, the Court is convinced that
      its [2010 contempt order] must remain in place despite
      Hammer's suspension. It is possible that Hammer could
      be licensed by another Bar or re-admitted to the
      Florida Bar, in which case, he would again pose an
      immediate threat to the Court's [2001 Injunction].
Id. at 19.     In the face of the stinging rebukes his conduct

elicited    from     judges      serving     several     different         courts,

Mr. Hammer's effort to characterize his conduct as some "complex
technical violation" rings hollow.



                                       11
                                                             No.   2019AP1974-BA



       ¶16     Mr. Hammer also challenges the Board's finding that he

was not credible and failed to show remorse.                Mr. Hammer claims

his application was extremely thorough, complete, and candid,

and notes that the Board made no finding to the contrary.7                    He

complains that "the Board did not once say what it believed to

be the truth, if it disbelieved Hammer."                We are disinclined to

second guess credibility determinations made by factfinders.                 In

re Bar Admission of Nichols, 2017 WI 55, ¶18, 375 Wis. 2d 439,

895 N.W.2d 831. And, nothing in this record suggests that it was

"clearly erroneous" for the Board to decide that Mr. Hammer's

explanations for his misconduct were insufficient to excuse that

misconduct.

       ¶17     Mr. Hammer also objects to the Board's determinations

that his voluntary ethics training with Attorney Dietrich was

"limited"      or    "brief"   and   that    Attorney   Dietrich   "lacked   an

adequate foundation to render a reliable opinion of Mr. Hammer's

character and fitness to practice law."                 He defends the value

and    scope    of   the   ethics    training.    He    argues   that   Attorney

Dietrich considered the same materials that the Board considered

and argues that the Board does not explain why it was able to

evaluate Mr. Hammer comprehensively, but Attorney Dietrich was

not.       However, as Attorney Dietrich himself acknowledged, it is

the Board, not the expert selected by the applicant, who is

charged by this court with evaluating the character and fitness


       This assertion, of course, predated the Board's recent
       7

motion to supplement the record. See infra, ¶25, fn. 10.



                                        12
                                                                              No.        2019AP1974-BA



of   bar     applicants.             SCR 30.01.             We    decline      to    disturb         the

Board's       decision      to        discount         Attorney        Dietrich's          favorable

testimony.        We conclude that the primary factual findings on

which the Board based its conclusion that Mr. Hammer failed to

satisfy SCR 40.06(1) are not clearly erroneous.8

       ¶18     We turn to Mr. Hammer's claim that the Board's adverse

determination          is        a     "mere        pretext           for     unconstitutional

discrimination against a resident of Florida."                                      Mr. Hammer's

effort to elevate his bar admission case to a constitutional

challenge      fails     and         is,   moreover,        constructed            upon    a    faulty

foundation.       Mr. Hammer claims that he should have been offered

conditional      admission            pursuant         to   SCR       40.075(1).           In      this,

Mr. Hammer       is    incorrect.                 Conditional           admission          was       not

appropriate on this record.                       Only applicants who are able to

meet       character   and       fitness          requirements          are    considered            for

conditional      admission.                See,    e.g.,         In   re     Bar    Admission         of

Hausserman,       2018      WI        115,   ¶26,       fn. 5,         385    Wis. 2d 70,           921

N.W.2d 211; In re Bar Admission of Jarrett, 2016 WI 39, ¶35,

fn. 3, 368 Wis. 2d 567, 879 N.W.2d 116.                                Conditional admission

is   not     designed       to       address      applicants           who    exhibit          a    lack

honesty, integrity, or credibility for admission.                                  Id.



       To the extent that we have not discussed each of
       8

Mr. Hammer's objections it is because we agree they are
insufficient to alter the outcome of this matter.         "'An
appellate court is not a performing bear, required to dance to
each and every tune played on an appeal.'"   County of Fond du
Lac v. Derksen, 2002 WI App 160, ¶4, 256 Wis. 2d 490, 647
N.W.2d 922 (citation omitted).



                                                  13
                                                                            No.   2019AP1974-BA



       ¶19       Based on this faulty premise, Mr. Hammer then reasons

that       because     he    was   not   offered      conditional           admission     there

"must       be   some       additional    factor,       beyond        Mr.     Hammer's     past

conduct, which has weighed in the Board's decision to decline to

certify Mr. Hammer's admission."                      Mr. Hammer suggests that the

"unspoken factor" is his Florida residency.                           He thus claims the

Board's decision violates the privileges and immunities clause

of the United States Constitution, citing Supreme Court of New

Hampshire v. Piper, 470 U.S. 274 (1985).                         Piper is inapposite.

There, a New Hampshire court rule that excluded nonresidents

from practicing law                in New Hampshire was ruled invalid; the

Constitution prohibits a state bar from excluding applicants on

the basis of their state of residence.                         Id.      Wisconsin has no

such rule and Mr. Hammer offers not a shred of evidence that the

Board employs a different standard for evaluating the character

and fitness of resident and non-resident bar applicants.

       ¶20       Mr.   Hammer's       misunderstanding         appears        predicated    on

his    oft-repeated           claim    that    if     he   had    committed         the   same

professional misconduct in Wisconsin, rather than Florida, he

would have been suspended, not disbarred.9                            Assuming, arguendo,

this is true, reinstatement of a person's law license following

a     disciplinary          suspension    is        governed     by     different       rules,



       In Florida, disbarment is the presumed sanction for
       9

lawyers found guilty of theft from a lawyer's trust account or
special trust funds received or disbursed by a lawyer as
guardian, personal representative, receiver, or trustee. See FL
R. Disc. 3-5.1(f).



                                               14
                                                                    No.    2019AP1974-BA



SCR chs. 21-22, and administered by a different court agency,

the   Office     of    Lawyer      Regulation.           Nor     is       the     formal

reinstatement    process      as   automatic      as    Mr.    Hammer      appears    to

believe.     See,     e.g.,   Rule    Petition     19-06,      In    the    Matter    of

Repealing and Recreating Supreme Court Rule 22.30 pertaining to

license reinstatement following disciplinary suspension, filed

March 13, 2019 (discussing the "more complex and time-consuming

reinstatement process required for respondent attorneys whose

licenses are revoked or suspended for six months or longer.")

      ¶21   Mr. Hammer points to the Board's comment that he has

not, for instance, "made no effort to become reinstated to the

Florida Bar, despite being eligible to do so . . .."                               Board

Order, p. 10.         Mr. Hammer says that "[c]ertainly, this same

expectation would not be had of a Wisconsin resident."                          However,

SCR 40.06(4) clearly provides that a bar applicant's license

status in other jurisdictions is a relevant inquiry.                            In In re

Bar Admission of Littlejohn, 2003 WI 36, ¶23, 261 Wis. 2d 183,

661 N.W.2d 42, we declined to admit an applicant who had been

professionally      disciplined      when    he   was   a     dentist.          Although

Littlejohn was later admitted to practice before the Minnesota

bar, we observed that "is entirely appropriate for the [Board]

to take into account the favorable decision made by the other

state, but we see no reason to require the [Board] to expressly

discuss or reject the other state's determinations.                         While the

other state's decision may be a relevant factor, the [Board]
should be free to accord it whatever weight the [Board] deems



                                        15
                                                                             No.    2019AP1974-BA



appropriate.";          See        also   Bar      Admission         of      Hausserman,       385

Wis. 2d 70, ¶17 (noting that Iowa Board of Law Examiners had

declined to let the applicant take Iowa bar exam because of

character and fitness concerns).                      We reject Mr. Hammer's claim

that   the     Board      discriminated          against         him    by    virtue      of   his

Florida residency.

       ¶22    We    turn      to    Mr.     Hammer's       primary        claim:       that    the

Board's conclusion is inconsistent with this court's resolution

of other bar admission cases.                        Mr. Hammer identifies several

common       themes     in       cases    when       we    were        persuaded     to    admit

applicants despite an adverse determination, including excellent

character      references,           affirmative          evidence      of    rehabilitation,

candor in the application process, commitment to the community,

and,   critically,           the     passage     of       time   since       the    problematic

conduct.       See, e.g., In re Bar Admission of Rippl, 2002 WI 15,

¶16, 250 Wis. 2d 519, 639 N.W.2d 553; In re Bar Admission of

Vanderperren, 2003 WI 37, 261 Wis. 2d 150, 661 N.W.2d 27; In re

Bar Admission of Anderson, 2006 WI 57, ¶26, 290 Wis. 2d 722, 715

N.W.2d 586; In re Bar Admission of Jarrett, 2016 WI 39, 368

Wis. 2d 567, 879 N.W.2d 116; and In re Bar Admission of Nichols,

2017 WI 55, 375 Wis. 2d 439, 895 N.W.2d 831.

       ¶23    While we have, on occasion, overruled the Board and

admitted certain applicants despite troubling past conduct, we

conclude that Mr. Hammer cannot be admitted to their ranks.                                     We

acknowledge        that      a     decade    has      passed      since       the    misconduct
culminating        in   Mr.      Hammer's       Florida      disbarment        and     that    Mr.



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Hammer cannot undo his past misconduct.                    This conundrum does not

mean, however, that we are somehow compelled to offer him a law

license.     While the passage of time may aid a bar applicant's

case,   nothing        in    our     prior    bar    admission        cases    should       be

construed to imply that an applicant enjoys a presumption of

admission after some period of time has elapsed.                               Lathrop v.

Donohue,     10   Wis. 2d 230,           237,       102   N.W.2d 404,         408    (1960)

(observing    that      the        practice   of    law   is    not    a     right    but   a

privilege).

    ¶24    With        the    serious    nature      of   his   misconduct,          coupled

with the number of incidents revealing deficiencies (BA 6.03(d),

(i)), Mr. Hammer has created a very heavy burden for himself.

In such cases the passage of time may not be sufficient to

persuade us that an applicant should be admitted to the practice

of law.

    ¶25    Based on our own review of the non-erroneous facts of

record before the Board at the time of its decision, we agree

that Mr. Hammer has failed to meet his burden under SCR 40.07 to

establish the requisite moral character and fitness to practice

law "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




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justice."10      Accordingly,    we        affirm   the     Board's   decision

declining to certify Mr. Hammer for admission to the Wisconsin

bar.

       ¶26   IT IS ORDERED that the decision of the Board of Bar

Examiners     declining   to   certify       that   David    E.    Hammer   has

satisfied the requirements for admission to the practice of law

in Wisconsin is affirmed.

       ¶27   IT IS FURTHER ORDERED the documents submitted under

seal are deemed confidential, and will be maintained under seal

until further order of the court.




       On April 30, 2020, the Board moved to supplement the
       10

record with evidence that as of October 2019, Mr. Hammer was a
named defendant in two separate lawsuits and had failed to
disclose the existence of these lawsuits to the Board. The Board
contends this violated Mr. Hammer's continuing duty to amend his
bar application.    See BA 14.03 ("Applicants are required to
notify the Board in writing of any changes with respect to the
information elicited by the application, and each application
must be amended to reflect the facts throughout the entire time
that the application is pending.")    Mr. Hammer claims that he
had no duty to disclose the litigation because the Board had
rendered its adverse decision before these lawsuits were filed
so his bar application was no longer "pending."

     By separate order     we took judicial notice of the existence
of the two lawsuits,        Wis. Stat. § 902.01(2)(b) & (3), and
dismissed the parties'      motions.   The new information did not
influence this court's      decision to affirm the Board's adverse
determination.

     However, the continuing obligation set forth in the bar
application and provided in SCR ch. 40 App., BA 14.03, applies
to applicants during the pendency of an appeal from an adverse
determination of the Board.



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