                                                        2017 WI 66

                   SUPREME COURT        OF   WISCONSIN
CASE NO.:              2016AP737-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Philip A. Shepherd, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Philip A. Shepherd,
                                 Respondent.

                          DISCIPLINARY PROCEEDINGS AGAINST SHEPHERD

OPINION FILED:         June 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   CONCURRED AND
   DISSENTED:          ABRAHAMSON, J. concurs and dissents, joined by
                       A.W. Bradley, J.
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:
                                                                      2017 WI 66
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2016AP737-D


STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Philip A. Shepherd, Attorney at Law:

Office of Lawyer Regulation,                                       FILED
            Complainant,
                                                              JUN 23, 2017
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Philip A. Shepherd,

            Respondent.




      ATTORNEY     disciplinary       proceeding.       Attorney         publicly

reprimanded.



      ¶1    PER CURIAM.      We review a report filed by Referee John

B. Murphy concluding that Attorney Philip A. Shepherd committed

ten counts of misconduct as alleged in the Office of Lawyer

Regulation's (OLR) complaint.          The referee determined that a

public     reprimand   was    appropriate    discipline         for      Attorney

Shepherd's     misconduct.      The   referee     also     recommended         that

Attorney Shepherd should be directed to pay restitution in two
                                                                     No.    2016AP737-D



client matters and should be assessed the full costs of the

proceeding, which are $1,887.96 as of March 8, 2017.

       ¶2      After careful review of the matter, we conclude that

the     referee's         findings    of   fact     are    supported       by    clear,

satisfactory, and convincing evidence.                    We adopt the referee's

conclusions of law.               We agree that the appropriate discipline

for Attorney Shepherd's misconduct is a public reprimand, and we

agree       that     Attorney      Shepherd     should    be     required       to   pay

restitution as recommended, and shall bear the full costs of

this proceeding.

       ¶3      Attorney      Shepherd      graduated      from     law     school     in

Minnesota in 1991 and was admitted to practice law in Wisconsin

in 2006.       He practiced in the Fond du Lac area.                He has no prior

discipline but his Wisconsin law license is presently suspended.

On October 31, 2014, the State Bar of Wisconsin administratively

suspended Attorney Shepherd's Wisconsin law license for failure

to comply with trust account certification requirements.                              On

June 2, 2015, the Board of Bar Examiners (BBE) administratively
suspended Attorney Shepherd's Wisconsin law license for failure

to    comply       with   continuing    legal     education      requirements.        On

October 31, 2015, the State Bar of Wisconsin administratively

suspended Attorney Shepherd's Wisconsin law license for failure

to pay bar dues.

       ¶4      On    March   7,    2016,   this   court    temporarily      suspended

Attorney Shepherd's Wisconsin law license for his failure to

cooperate in an OLR investigation into conduct that resulted in


                                            2
                                                                             No.    2016AP737-D



Counts      nine     and    ten     of    the    disciplinary         complaint         in    this

proceeding.

       ¶5      On April 12, 2016, the OLR filed a ten-count complaint

against Attorney Shepherd alleging misconduct involving three

client matters as well as failure to cooperate with the OLR.

       ¶6      The first four counts of the OLR complaint involve

Attorney       Shepherd's         representation         of    Jean    and    James          B.,   a

married couple, who hired Attorney Shepherd to complete a health

care power of attorney for Jean's mother.                            They did not sign a

written        fee    agreement.             Attorney         Shepherd       completed         the

paperwork and Jean gave Attorney Shepherd a $200 check, which he

deposited into his business account.                      On December 23, 2013, Jean

met     with    Attorney          Shepherd      to     begin    drafting          guardianship

paperwork for her mother and paid Attorney Shepherd $2,000 in

advanced       fees;       she    did     not    sign    a     written      fee     agreement.

Attorney       Shepherd          deposited       the    $2,000       into     his       business

account.       Later that day, Jean learned that a guardianship would

not be necessary.            She contacted Attorney Shepherd and told him
not to proceed with the guardianship work.

       ¶7      In March of 2014, James asked Attorney Shepherd to

draft    an     estate      plan    for    his       family    and    to    form    a    limited

liability corporation (LLC).                     At that time, Attorney Shepherd

had not refunded any fees to these clients or sent them an

accounting.          They indicated they wished to use their previously

paid    funds      for     this    legal     work.       Attorney      Shepherd         did    not

prepare a fee agreement for this work.                        He completed the LLC and
estate      work     in    April    2014.        On    August 4,      2014,       the    clients
                                                 3
                                                                            No.   2016AP737-D



requested an accounting and a refund of any unearned fees.                               When

Attorney Shepherd failed to provide an accounting or a refund,

the clients filed a grievance.

    ¶8      On       March    2,       2015,   Attorney          Shepherd     created      and

submitted       to   the     OLR    an     invoice    showing       $1,577.50       of    work

completed on the guardianship, estate plan, and LLC matters,

leaving $622.50 in unearned fees.                         Attorney Shepherd has not

refunded any unearned fees to these clients.

    ¶9      The OLR complaint alleged four counts of misconduct

with respect to Attorney Shepherd's representation of Jean and

James:     (1) by accepting a $2,000 advance fee for legal work

without     a    written         fee     agreement,       when     it   was       reasonably

foreseeable      that      the     total    cost     of    the    representation         would

exceed $1,000, and did exceed $1,000, Attorney Shepherd violated

SCR 20:1.5(b)(1) and (2);1 (2) by failing to place advanced fees

    1
         SCR 20:1.5(b) provides:

         (1) The scope of the representation and the basis
    or rate of the fee and expenses for which the client
    will be responsible shall he communicated to the
    client in writing, before or within a reasonable time
    after commencing the representation, except when the
    lawyer will charge a regularly represented client on
    the same basis or rate as in the past. If it is
    reasonably   foreseeable  that  the   total  cost   of
    representation to the client, including attorney's
    fees, will be $1000 or less, the communication may he
    oral or in writing. Any changes in the basis or rate
    of the fee or expenses shall also be communicated in
    writing to the client.

         (2) If the total cost of representation to the
    client, including attorney's fees, is more than $1000,
    the purpose and effect of any retainer or advance fee
                                                    (continued)
                                               4
                                                                No.     2016AP737-D



into his trust account, without evidence of an intention to

follow     the   SCR   20:1.15(b)(4m)       alternative,    Attorney     Shepherd

violated SCR 20:1.15(b)(4);2 (3) by failing to respond to the

clients' requests for information regarding fees and a final

accounting, Attorney Shepherd violated SCR 20:1.5(b)(3);3 and (4)

by   failing     to    refund   any   unearned    fees     to   these    clients,

Attorney Shepherd violated SCR 20:1.16(d).4


      that is paid to the lawyer shall be communicated in
      writing.
      2
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule."      See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

      SCR 20:1.15(b)(4) provided:

           Except as provided in par. (4m), unearned fees
      and advanced payments of fees shall be held in trust
      until earned by the lawyer, and withdrawn pursuant to
      sub. (g). Funds advanced by a client or 3rd party for
      payment of costs shall be held in trust until the
      costs are incurred.
      3
       SCR 20:1.5(b)(3) provides:   "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
      4
          SCR 20:1.16(d) provides:

           Upon termination of representation, a lawyer
      shall take steps to the extent reasonably practicable
      to protect a client's interests, such as giving
      reasonable notice to the client, allowing time for
      employment of other counsel, surrendering papers and
      property to which the client is entitled and refunding
      any advance payment of fee or expense that has not
      been earned or incurred. The lawyer may retain papers
                                                      (continued)
                                        5
                                                                    No.     2016AP737-D



     ¶10    Counts five through eight of the complaint involved

Attorney Shepherd's representation of I.P., in connection with

documenting the sale of a farm.

     ¶11 In early 2014, I.P. hired Attorney Shepherd to draft

paperwork for the sale and transfer of a farm.                     On January 23,

2014, I.P. met with Attorney Shepherd to discuss the necessary

legal work and gave him several original documents.                          Attorney

Shepherd indicated that the work would be completed within a

month.     At that meeting, I.P. paid Attorney Shepherd $1,000 in

advanced    fees,    but    did   not   sign       a    written    fee    agreement.

Attorney Shepherd did not deposit I.P.'s fees into his trust

account and did no work on I.P.'s behalf.

     ¶12    From March through May of 2014, I.P. and her daughter

repeatedly    attempted      to   contact      Attorney         Shepherd,     without

success.     Eventually I.P. hired another attorney to document the

farm's sale.        Attorney Shepherd has not refunded any unearned

fees to I.P., despite her request that he do so.5

     ¶13    The OLR complaint alleged four counts of misconduct
with respect to Attorney Shepherd's representation of I.P.:                        (1)

by failing to take steps to complete the work that he had been

hired to perform on I.P.'s behalf, Attorney Shepherd violated




     relating to      the    client     to   the       extent   permitted     by
     other law.
     5
       In December of 2014, the Wisconsin Lawyers' Fund                            for
Client Protection reimbursed I.P.'s $1,000 advanced fee.


                                         6
                                                                  No.    2016AP737-D



SCR 20:1.3;6 (2) by failing to respond to I.P.'s status inquiries

or otherwise keep I.P. informed regarding the status of her

matter, Attorney Shepherd violated SCR 20:1.4(a)(3) and (4);7 (3)

by failing to place advanced fees into his trust account, and

without     evidence       of    an      intention      to    follow      the     SCR

20:1.15(b)(4m)       alternative,        Attorney      Shepherd   violated        SCR

20:1.15(b)(4); and (4) by failing to refund unearned fees to

I.P., Attorney Shepherd violated SCR 20:1.16(d).

     ¶14    Counts nine and ten of the OLR complaint pertain to

Attorney Shepherd's unauthorized representation of M.T. and his

failure     to    cooperate     with     the   OLR's    inquiries       about    this

incident.        Attorney Shepherd's Wisconsin law license has been

administratively      suspended        since   October 31,    2014.       In     March

2015, Attorney Shepherd agreed to prepare a will and related

documents    for    M.T.        M.T.    paid   Attorney      Shepherd     $700    and

Attorney Shepherd completed the work for M.T.

     ¶15    On    November      16,    2015,   the     OLR   contacted     Attorney

Shepherd requesting specific information regarding his work for
M.T., which was conducted while his law license was suspended.

Attorney Shepherd did not respond.                On December 17, 2015, the

OLR personally served Attorney Shepherd with a letter directing

     6
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
     7
       SCRs 20:1.4(a)(3) and (4) provides a lawyer shall: "(3)
keep the client reasonably informed about the status of the
matter, (4) promptly comply with reasonable requests by the
client for information."


                                          7
                                                                      No.     2016AP737-D



him   to    respond    to    the   OLR's   request        regarding    M.T.      Again,

Attorney Shepherd did not respond.                  The OLR filed a notice of

motion and motion requesting an order to show cause as to why

Attorney Shepherd's license should not be suspended for failing

to cooperate in an OLR investigation.                     On March 7, 2016, this

court      granted    the     OLR's     motion      and    temporarily        suspended

Attorney      Shepherd's        law     license.           His   license        remains

temporarily suspended.

      ¶16    The     OLR    complaint    alleged     two    counts     of   misconduct

regarding     this     incident:        (1)    by   practicing        law   while    his

license was suspended, Attorney Shepherd violated SCR 22.26(2),8

enforced via SCR 20:8.4(f);9 and (2) by failing to respond to the




      8
          SCR 22.26(2) provides:

           An attorney whose license to practice law is
      suspended or revoked or who is suspended from the
      practice of law may not engage in this state in the
      practice of law or in any law work activity
      customarily done by law students, law clerks, or other
      paralegal personnel, except that the attorney may
      engage in law related work in this state for a
      commercial employer itself not engaged in the practice
      of law.
      9
       SCR 20:8.4(f) provides:   "It is professional misconduct
for a lawyer to violate a state supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."


                                           8
                                                                        No.     2016AP737-D



OLR's      request     for     information,         Attorney        Shepherd        violated

SCR 22.03(6), enforceable via SCR 20:8.4(h).10

      ¶17    Attorney Shepherd filed an answer in which he admitted

to   "the    general    factual      basis        for     Counts    1-10"     and    to   the

"general legal conclusions in Counts 1-10."                         Referee Murphy was

appointed.

      ¶18    At an ensuing scheduling conference, Attorney Shepherd

indicated he did not want to contest the allegations contained

in   the    complaint        nor   did   he       contest    the    OLR's     motion      for

judgment     on   the    pleadings.           He     did,     however,       contest      the

proposed      discipline,          maintaining            private      discipline         was

sufficient in view of his struggles with depression and other

personal     challenges.           The   OLR        was     directed    to     forward      a

stipulation to Attorney Shepherd by September 9, 2016.

      ¶19    By letter dated October 11, 2016, the OLR informed the

referee that Attorney Shepherd had not returned the stipulation

or otherwise responded to the OLR.                   The OLR sought a judgment on

the pleadings.
      ¶20    The OLR and Attorney Shepherd then executed and filed

a Waiver of Right to a Hearing and each party submitted briefs

on the proper level of discipline.




      10
        SCR 20:8.4(h) provides:  "It is professional misconduct
for a lawyer to fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."


                                              9
                                                                        No.    2016AP737-D



      ¶21   The referee filed his findings of fact, conclusions of

law, and recommendation for discipline on February 24, 2017.

The referee determined that the OLR had met its burden of proof

with respect to the ten counts of misconduct alleged in the

complaint.         Essentially,       the       referee    found        that    Attorney

Shepherd admitted to each and every allegation contained in the

complaint, based on his admissions contained in the Answer and

in the Waiver of Right to a Hearing, together with Attorney

Shepherd's     statements      made    during       the     telephone          scheduling

conferences.

      ¶22   The      referee      then          considered        the         appropriate

discipline, considering the seriousness, nature, and extent of

misconduct, the level of discipline needed to protect the public

and the legal system from repetition of the misconduct, the need

to impress on the attorney the seriousness of the misconduct,

and the need to deter others from committing similar acts.                             In

re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72,

290   Wis. 2d 30,      712     N.W.2d 877;        citing     In    re     Disciplinary
Proceedings       Against    Charlton,      174     Wis. 2d 844,          875-76,      498

N.W.2d 380 (1993).           The referee concluded that in this case,

public discipline is appropriate.                 The referee recommends that

we publicly reprimand Attorney Shepherd, that we order him to

pay   restitution,     and    that    we    impose    the    full       costs     of   the

proceeding on Attorney Shepherd.

      ¶23   Attorney Shepherd sought to file an appeal from the

referee's report and recommendation, but, by order dated May 15,


                                           10
                                                              No.   2016AP737-D



2017 the court ruled that his appeal was untimely.11                Thus, the

court's review proceeds under SCR 22.17(2).12

     ¶24    In   conducting   our    review,   we    uphold     a    referee's

findings of fact unless they are shown to be clearly erroneous,

but we review the referee's conclusions of law on a de novo

basis.     See In re Disciplinary Proceedings Against Carroll, 2001

WI 130, ¶29, 248 Wis. 2d 662, 636 N.W.2d 718; In re Disciplinary

Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137

(1997).       Having   established    the   proper    factual       and   legal

setting, we determine the appropriate level of discipline to be

imposed under the circumstances, independent of the referee's


     11
       In his notice of appeal, Attorney Shepherd indicated his
intent to resign his law license.        As part of our order
dismissing his appeal we advised Attorney Shepherd that we would
hold this disciplinary matter in abeyance for 20 days to afford
him the opportunity to file a petition to voluntarily surrender
his Wisconsin license with the State Bar of Wisconsin, such that
his request for a voluntary resignation from the State Bar would
be considered along with the pending disciplinary proceeding.
On May 30, 2017, Attorney Shepherd filed a petition to
voluntarily surrender his Wisconsin license with the State Bar
of Wisconsin.   On June 1, 2017, the OLR asked that we resolve
this disciplinary proceeding before acting on the petition.
     12
          SCR 22.17(2) provides:

          If no appeal is filed timely, the supreme court
     shall review the referee's report; adopt, reject or
     modify the referee's findings and conclusions or
     remand the matter to the referee for additional
     findings;   and   determine  and   impose appropriate
     discipline. The court, on its own motion, may order
     the parties to file briefs in the matter.




                                     11
                                                                          No.      2016AP737-D



recommendation.          See       In       re   Disciplinary      Proceedings       Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

      ¶25       There is no showing that any of the referee's findings

of fact are clearly erroneous.                     Accordingly, we adopt them.             We

also agree with the referee's conclusions of law that Attorney

Shepherd violated the supreme court rules set forth above.

      ¶26       The    only    contested          issue     here   is   the     appropriate

discipline.           On balance, we accept the referee's recommendation

that a public reprimand is appropriate.

      ¶27       Attorney Shepherd argued for a private sanction.                           He

suffers from depression and has informed the referee that he

intends to leave the practice of law permanently, such that a

public reprimand would serve no purpose and would exacerbate his

feelings of shame and sense of failure.

      ¶28       The    referee       properly         declined     to   accept      Attorney

Shepherd's promise to resign his law license in exchange for a

private sanction.              First, as the referee correctly observed,

sanctions are not only designed to deter an individual offending
attorney from committing future violations.                         Sanctions are also

intended to give notice to other attorneys and to the public

that the improper practice of law carries serious consequences.

Therefore, Attorney Shepherd's stated plan to leave the practice

of   law    does      not     mean      a    lesser    sanction    should     be    imposed.

Second,     a    lawyer       is     typically        not   permitted    to     voluntarily

resign his or her law license while a grievance is pending.                               See

In re Disciplinary Proceedings Against Snyder, 127 Wis. 2d 446,


                                                 12
                                                                        No.   2016AP737-D



380 N.W.2d 367 (1986) (voluntary resignation is an inappropriate

disposition of a disciplinary proceeding); SCR 10.03(7)(a).13

     ¶29       Attorney Shepherd also asserts that his mental health

issues, namely serious depression, warrant a private sanction

because of the toll a public sanction will take on his mental

health.        In his untimely appeal, he asserted that the referee

failed    to    adequately      consider    the   effects     of    depression        and

underestimated        Attorney       Shepherd's     attempts       to     resolve     the

disciplinary issues.

     ¶30       Although no timely appeal was filed, we note that the

record    does      not    support    Attorney    Shepherd's       claims      in    this

regard.         The       referee    acknowledged    that      Attorney        Shepherd

believed his misconduct stemmed from serious depression.                              The

referee    acknowledged        that    depression    "certainly         can   make    the

practice       of   law    difficult."      However,    the     referee        was    not

persuaded that, under these facts, depression was a sufficient

explanation for the misconduct to warrant a private sanction.

     13
          SCR 10.03(7)(a) provides:

          Voluntary resignation of membership. If a member
     of the state bar files with the executive director a
     written notice of the member's surrender of his or her
     license to practice law and the acceptance by the
     supreme court of his or her resignation in the state
     bar, the person shall then cease to be a member of the
     state bar and his or her name shall be removed from
     the   membership    register.   Before    accepting  a
     resignation, the supreme court shall request from the
     office of lawyer regulation information concerning
     whether the attorney is the subject of any pending
     grievances, investigations, or proceedings.


                                           13
                                                                                    No.    2016AP737-D



Moreover, the OLR had indicated that it had already considered

Attorney Shepherd's depression as a mitigating factor when it

recommended         a    public      reprimand         rather       than        a     more       severe

sanction.       The referee also expressed justifiable concern that

Attorney       Shepherd        had   not    taken       steps       to     make       his    clients

financially         whole     without      the    need       for    a     restitution            order.

Indeed, he appears to have attempted to use restitution as a

bargaining chip to obtain a lesser sanction.

       ¶31     We recognize that depression apparently played a role

in    Attorney      Shepherd's       misconduct          and       have    sympathy          for      the

intense pain mental illness can inflict on those who suffer from

it.      Based on this record, however, we accept the referee's

determination that public discipline is appropriate.                                         Attorney

Shepherd committed misconduct in three separate client matters.

Work    was    left      undone,     unearned         fees       were     not       returned,         and

Attorney Shepherd undertook additional legal work knowing his

license was suspended.                No two fact situations are identical,

but we agree that in this case, a public reprimand is warranted.
See In re Disciplinary Proceedings Against Smead, 2013 WI 19,

345 Wis. 2d 625, 827 N.W.2d 81 (imposing public reprimand for

seven    counts         of   misconduct      including           accepting           fees    without

written       fee   agreements,         failing        to    deposit        fees          into    trust

account,      failing        to   respond    to       client       inquiries,             failing     to

return    unearned           fees,   and   failing          to   notify      clients             of   his

suspension); see also Public Reprimand of Rod J. Koenen, No.

2011-15                 (electronic                   copy                available                   at
https://compendium.wicourts.gov/app/raw/002428.html),                                      (imposing
                                                 14
                                                                    No.      2016AP737-D



public reprimand for four counts of misconduct including failing

to have written fee agreement, providing inaccurate information,

placing     advanced      fee    into     business   account,     and     failing     to

respond     to    the   OLR     investigation);      Public     Reprimand     of   Koua

Vang,       No.         2004-4      (electronic          copy      available           at

https://compendium.wicourts.gov/app/raw/001662.html),                        (imposing

public reprimand on lawyer, with depression, for nine counts of

misconduct committed in three client matters including failure

to keep clients informed, failure to diligently pursue client

interests, and failing to comply with a court order directing

return of a file).

      ¶32    Finally,      we    agree     that   Attorney    Shepherd       should    be

required to pay restitution in two client matters as set forth

herein and shall pay the full costs of the proceeding.

      ¶33    IT    IS    ORDERED    that    Philip   A.    Shepherd     is    publicly

reprimanded for professional misconduct.

      ¶34    IT IS FURTHER ORDERED that Philip A. Shepherd shall

pay $622.50 in restitution to Jean B. and $1,000 in restitution
to   Wisconsin      Lawyers'       Fund    for    Client     Protection      regarding

I.P.'s claim.

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

of this order, Philip A. Shepherd shall pay to the Office of

Lawyer    Regulation       the     costs    of    this    proceeding,     which       are

$1,887.96 as of March 8, 2017.

      ¶36    IT IS FURTHER ORDERED that payment of restitution to

Jean B. and to the Wisconsin Lawyers' Fund for Client Protection


                                            15
                                                                No.   2016AP737-D



is to be completed prior to paying costs to the Office of Lawyer

Regulation.

       ¶37   IT IS FURTHER ORDERED that the March 7, 2016 temporary

suspension of Philip A. Shepherd's license to practice law in

Wisconsin, due to his willful failure to cooperate with the

Office of Lawyer Regulation's investigation in this matter, is

lifted.

       ¶38   IT   IS    FURTHER    ORDERED     that     the     administrative

suspension of Philip A. Shepherd's license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues, failure

to file a trust account certification, and failure to comply

with   continuing      legal   education    requirements,      will   remain   in

effect until each reason for the administrative suspension has

been rectified, pursuant to SCR 22.28(1).

       ¶39   IT   IS   FURTHER    ORDERED    that     Philip    A.    Shepherd's

Petition to Voluntarily Surrender his Wisconsin Law License is

granted, and his license is surrendered effective the date of

this order.
       ¶40   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.




                                      16
                                                                          No.    2016AP737-D.ssa


       ¶41    SHIRLEY S. ABRAHAMSON, J.                        (concurring in part and

dissenting in part).               I disagree with the court's accepting the

voluntary resignation from the practice of law.                                See my dissent

in    the    order         dated   May    15,    2017,         in   OLR   v.        Horsch,    No.

2015AP1928-D, addressing the issue of a voluntary resignation

during an ongoing OLR proceeding.

       ¶42    Our case law is clear:                      The court does not grant an

attorney's petition to voluntarily resign from the practice of

law    when       a    disciplinary        action         is    pending        to    avoid    the

imposition of discipline for unprofessional conduct.                                  See, e.g.,

In re Disciplinary Proceedings Against Ewald-Herrick, 2014 WI

40, ¶19, 354 Wis. 2d 672, 847 N.W.2d 823; In re Disciplinary

Proceedings           Against      Schalow,      131        Wis. 2d 1,      388       N.W.2d 176

(1986);      In       re    Disciplinary        Proceedings         Against         Snyder,    127

Wis. 2d 446,           380      N.W.2d 367           (1986);        In    re        Disciplinary

Proceedings           Against      Wortley,      126      Wis. 2d 58,       374       N.W.2d 898

(1985).

       ¶43    The difficulty with a voluntary resignation is that a
lawyer who resigns can "unresign," and the Supreme Court Rules

do not set forth a procedure the attorney, the OLR, and the

court should follow at that time.                         It may be difficult at that

time to prove misconduct and impose appropriate conditions for

readmission.

       ¶44    If       the    court      wants       to     accomplish         the    goals     of

disciplining           Attorney      Shepherd         for      misconduct       and     allowing

Attorney Shepherd to terminate his practice of law, I conclude
that the court should follow Supreme Court Rule 22.19.                                       Under

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this   rule,   Attorney    Shepherd   would    be    permitted     to   file   a

petition stating that that he cannot successfully defend against

the charges and that he petitions for voluntary revocation of

his license.

       ¶45   In contrast to resignation, Supreme Court Rule 22.19

provides     that   an   attorney   who   is   the    subject     of    an   OLR

proceeding may petition for voluntary revocation of his or her

license as follows.

       SCR 22.19 Petition for consensual license revocation.

       (1) An attorney who is the subject of an investigation
       for possible misconduct or the respondent in a
       proceeding may file with the supreme court a petition
       for the revocation by consent or [sic] his or her
       license to practice law.

       (2) The petition shall state that the petitioner
       cannot successfully defend against the allegations of
       misconduct.

       (3) If a complaint has not been filed, the petition
       shall be filed in the supreme court and shall include
       the director's summary of the misconduct allegations
       being investigated. Within 20 days after the date of
       filing of the petition, the director shall file in the
       supreme court a recommendation on the petition. Upon
       a showing of good cause, the supreme court may extend
       the time for filing a recommendation.

       (4) If a complaint has been filed, the petition shall
       be filed in the supreme court and served on the
       director and on the referee to whom the proceeding has
       been assigned. Within 20 days after the filing of the
       petition, the director shall file in the supreme court
       a response in support of or in opposition to the
       petition and serve a copy on the referee.       Upon a
       showing of good cause, the supreme court may extend
       the time for filing a response.     The referee shall
       file a report and recommendation on the petition in
       the supreme court within 30 days after receipt of the
       director's response.

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    (5) The supreme court shall grant the petition and
    revoke the petitioner's license to practice law or
    deny the petition and remand the matter to the
    director or to the referee for further proceedings.
    ¶46      In contrast to a lawyer who voluntarily resigns, a

lawyer whose license has been revoked cannot seek readmission

for five years, SCR 22.29(2), and the revocation documents will

provide a full record for the court's consideration at the time

of readmission.       The Rules provide a procedure for investigation

upon a request for readmission.               If Attorney Shepherd is sincere

about not wanting to practice law again, SCR 22.19 seems to fit

the instant case.

    ¶47      For the reasons set forth, I would not accept Attorney

Shepherd's voluntary resignation.

    ¶48      I   suggest   that     the   OLR    Procedure     Review      Committee

(Professor Marsha Mansfield, University of Wisconsin Law School,

Reporter), appointed by the court in June 2016, examine the

issue   of   voluntary     resignation         (and    readmission     proceedings

thereafter) and voluntary revocation by an attorney subject to a

discipline       proceeding   who    wishes      to    terminate     his    or    her
practice of law.       The instant case is illustrative of a problem.

    ¶49      For the reasons set forth, I write separately.

    ¶50      I   am   authorized     to   state       that   Justice    ANN      WALSH

BRADLEY joins this opinion.




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