                                                              2013 WI 48

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2002AP875-D
COMPLETE TITLE:
                        In the Matter of Disciplinary Proceedings
                        Against Boris Ouchakof, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Boris Ouchakof,
                                  Respondent.
                             REINSTATEMENT PROCEEDINGS FOR OUCHAKOF

OPINION FILED:          May 29, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:
                                                                        2013 WI 48
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2002AP875-D


STATE OF WISCONSIN                            :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Boris Ouchakof, Attorney at Law:

Office of Lawyer Regulation,                                         FILED
              Complainant,                                      MAY 29, 2013
      v.                                                           Diane M. Fremgen
                                                                Clerk of Supreme Court
Boris Ouchakof,

              Respondent.




      ATTORNEY    reinstatement     proceeding.       Reinstatement         granted

upon conditions.


      ¶1      PER CURIAM.     We review the report and recommendation

of the referee, Attorney Lisa C. Goldman, that the license of
Attorney Boris Ouchakof to practice law in Wisconsin should be

reinstated     with     certain   specified   conditions.1           After     fully


      1
       Because neither party appealed from the referee's report
and recommendation, our review proceeds under SCR 22.33(3),
which provides that "[i]f no appeal is timely filed, the supreme
court shall review the referee's report, order reinstatement,
with or without conditions, deny reinstatement, or order the
parties to file briefs in the matter."
                                                                  No.    2002AP875-D



reviewing this matter, we agree with the referee that Attorney

Ouchakof's license should be reinstated and that a condition

should be placed upon his practice of law in this state.                          We

modify the referee's recommended condition slightly in order to

provide clarification of the scope of the required monitoring.

We also determine that Attorney Ouchakof should be required to

pay   the     costs    of   this   reinstatement        proceeding,     which   were

$1,483.43 as of December 13, 2012.

      ¶2      The     standards    that   apply    to    all   petitions   seeking

reinstatement after a disciplinary suspension or revocation are

set   forth    in     SCR   22.31(1).2     In     particular,    the    petitioning

attorney must demonstrate by clear, satisfactory, and convincing

evidence that he or she has the moral character necessary to

practice law in this state, that his or her resumption of the

      2
          SCR 22.31(1) states:

           The petitioner has the burden of demonstrating,
      by clear, satisfactory, and convincing evidence, all
      of the following:

           (a) That he or she has the moral character to
      practice law in Wisconsin.

           (b) That his or her resumption of the practice of
      law will not be detrimental to the administration of
      justice or subversive of the public interest.

           (c) That his or her representations in the
      petition, including the representations required by
      SCR   22.29(4)(a)  to  [(4m)]   and   22.29(5), are
      substantiated.

           (d) That he or she has complied fully with the
      terms of the order of suspension or revocation and
      with the requirements of SCR 22.26.

                                          2
                                                                       No.   2002AP875-D



practice of law will not be detrimental to the administration of

justice    or    subversive    of    the    public      interest,      and   that    the

attorney has complied fully with the terms of the suspension or

revocation      order    and   the    requirements         of    SCR     22.26.       In

addition,    SCR      22.31(1)(c)    incorporates        the    statements     that    a

petition        for     reinstatement          must     contain         pursuant      to

SCR 22.29(4)(a)-[(4m)].3            Thus,      the    petitioning      attorney     must


     3
       SCR 22.29(4)(a) through (4m) provides that a petition for
reinstatement shall show all of the following:

          (a) The   petitioner    desires                  to       have      the
     petitioner's license reinstated.

          (b) The petitioner has not practiced law during
     the period of suspension or revocation.

          (c) The petitioner has complied fully with the
     terms of the order of suspension or revocation and
     will   continue  to   comply   with them  until the
     petitioner's license is reinstated.

          (d) The petitioner has maintained competence and
     learning in the law by attendance at identified
     educational activities.

          (e) The petitioner's conduct since the suspension
     or revocation has been exemplary and above reproach.

          (f) The petitioner has a proper understanding of
     and attitude toward the standards that are imposed
     upon members of the bar and will act in conformity
     with the standards.

          (g) The petitioner can safely be recommended to
     the legal profession, the courts and the public as a
     person fit to be consulted by others and to represent
     them and otherwise act in matters of trust and
     confidence and in general to aid in the administration
     of justice as a member of the bar and as an officer of
     the courts.

                                           3
                                                                 No.    2002AP875-D



demonstrate        that   the     required      representations          in    the

reinstatement petition are substantiated.

        ¶3    As set forth in our prior disciplinary decision, In re

Disciplinary       Proceedings    Against    Ouchakof,    2002    WI    122,   257

Wis. 2d 1, 653 N.W.2d 108 (Ouchakof I), Attorney Ouchakof was

admitted to the practice of law in Wisconsin in September 1989.

He thereafter practiced in Madison.             From 1992 to 1998 he was

employed as an associate attorney with a Madison law firm.                      He

then opened his own law office.

        ¶4    In   June    2000    Attorney     Ouchakof's        license      was

administratively suspended due to his failure to comply with the

mandatory reporting requirements for continuing legal education

(CLE).       His license has not returned to active status since that

time.

     ¶5       Attorney    Ouchakof    was     not   the    subject       of    any

disciplinary proceeding until March 2002, when the Office of


             (h) The petitioner has fully complied               with    the
        requirements set forth in SCR 22.26.

             (j) The petitioner's proposed use of the license
        if reinstated.

             (k) A full description of all of the petitioner's
        business activities during the period of suspension or
        revocation.

         (4m) The petitioner has made restitution to or
    settled all claims of persons injured or harmed by
    petitioner's misconduct, including reimbursement to
    the Wisconsin lawyers' fund for client protection for
    all payments made from that fund, or, if not, the
    petitioner's explanation of the failure or inability
    to do so.

                                       4
                                                                                         No.    2002AP875-D



Lawyer      Regulation        (OLR)    filed             a    disciplinary            complaint       that

charged      Attorney         Ouchakof          with          41     counts         of     professional

misconduct arising out of 14 separate client matters and his

practice       of     law     during       an        administrative                suspension.          In

addition to the counts charged in the complaint, the OLR was

also     investigating           an    additional                  12     counts         of     potential

misconduct arising out of another four client grievances.

       ¶6      The    misconduct       described               in       the    complaint         included

allegations         that     while     employed               by    the       law    firm,       Attorney

Ouchakof secretly charged and personally accepted fees that he

did not remit or even disclose to his employer, contrary to his

employment contract.              He was also alleged, inter alia, to have

failed to act with reasonable diligence and promptness, to have

failed to comply promptly with clients' reasonable requests for

information, to have failed to communicate the basis or rate of

his fee, to have failed to hold in trust property in which

another person had an interest, to have failed to protect his

clients' interests upon the termination of his representation,

and    to   have      failed     to    cooperate               with       and       provide      relevant

information to the OLR.

       ¶7      After       the   filing         of       the       OLR's      complaint,         Attorney

Ouchakof filed a petition for the voluntary revocation of his

license to practice law in Wisconsin.                                His petition stated that

he     could    not         successfully             defend         against          the       misconduct

allegations          set    forth     in    the              complaint        or     the       misconduct

allegations which the OLR was still investigating.                                             This court


                                                     5
                                                                    No.        2002AP875-D



granted the petition and revoked his license in November 2002.

Ouchakof I, 257 Wis. 2d 1, ¶10.4

       ¶8      In December 2011 Attorney Ouchakof filed a petition

for reinstatement.             The OLR's response to the petition stated

that it did not oppose his reinstatement.                 The referee then held

a   public     hearing    on    the   reinstatement      petition        and    filed   a

report and recommendation with this court.

       ¶9      The referee found that following the revocation of his

license,       Attorney        Ouchakof      maintained         steady     employment

summarizing medical records for Becker Law Offices.                       The referee

further      found    that     Attorney     Ouchakof's    work     for    Becker      Law

Offices did not constitute the practice of law or work that is

otherwise      prohibited       by    SCR   22.26(2).       Attorney       Ouchakof's

employment with Becker Law Offices terminated in November 2011

for reasons unrelated to his job performance.                    He has since been

seeking other employment.             In addition to his employment at the

law    firm,    Attorney       Ouchakof     has   also    for    many     years      been

involved with coaching a club soccer team in Madison and has

extensively volunteered his time at his church, both of which
indicate a genuine desire to contribute to the community and to

live   a    life     characterized     by   positive     conduct.         The    referee
noted that the record contained a number of letters from members

of the legal community, including individuals associated with


       4
       We also ordered Attorney Ouchakof to pay the costs of that
disciplinary proceeding.      The OLR's response to Attorney
Ouchakof's petition for reinstatement advises that he satisfied
the cost judgment in November 2003.

                                            6
                                                                               No.        2002AP875-D



Becker      Law     Offices,         who    attested           to     Attorney           Ouchakof's

character         and    trustworthiness,                 viewed       favorably              Attorney

Ouchakof's work, and supported his reinstatement to the practice

of   law.         No     testimony         or       letters      in     opposition            to   his

reinstatement were received.

     ¶10     The referee commented at some length on the fact that

Attorney      Ouchakof         had     testified              that     during           the     events

underlying the revocation of his license he had been suffering

from a major depression and that he has continued to be treated

for depression.           The referee noted that the 2002 disciplinary

proceeding        did    not   involve          a       determination         of    any        medical

incapacity.         Nonetheless,           she      indicated         that,    given          Attorney

Ouchakof's history of depression, he needed to show that he is

treating     his        depression         such         that    he     will        be     able,     if

reinstated, to meet the obligations of practicing law in accord

with the ethical standards adopted by this court.                                       The referee

concluded that Attorney Ouchakof had made such a showing.                                          She

accepted Attorney Ouchakof's testimony that he has continued to
take the medication prescribed by his treatment provider to keep

his depression under control.
     ¶11     Accordingly, the referee determined that through his

written     submissions        and     during           the    public    hearing,             Attorney
Ouchakof had satisfied all of the requirements for reinstatement

by clear, satisfactory, and convincing evidence.                                        The referee
concluded that Attorney Ouchakof may now safely be recommended

to return to the practice of law in this state.


                                                    7
                                                                             No.   2002AP875-D



      ¶12    The referee, however, expressed concern that Attorney

Ouchakof     may     require       some        assistance       to     ensure      that    his

depression does not derail his reintegration into the practice

of law.      In particular, the referee was concerned by the fact

that Attorney Ouchakof had ceased counseling several years ago

when his counselor had moved away from the area because the

counselor had not discharged him at that time from the need for

any further counseling.                The referee therefore recommended as a

condition     of    reinstatement             that    the     court    require       Attorney

Ouchakof to enter into a monitoring contract with the Wisconsin

Lawyers Assistance Program (WisLAP) to monitor his treatment for

depression.        The referee indicated that such monitoring would be

important      during       the        time     following        Attorney          Ouchakof's

reinstatement, but did not indicate how long she thought such

monitoring should continue.

      ¶13    We review referee reports in reinstatement proceedings

under standards of review similar to those we use for reviewing

referee reports in disciplinary proceedings.                          We do not overturn
a referee's findings of fact unless they are clearly erroneous.

On the      other hand, we review               a     referee's       legal    conclusions,
including whether the attorney has satisfied the criteria for

reinstatement,       on     a     de     novo        basis.      In     re     Disciplinary

Proceedings Against Jennings, 2011 WI 45, ¶39, 334 Wis. 2d 335,

801   N.W.2d 304;      In   re     Disciplinary          Proceedings         Against      Gral,

2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168.

      ¶14    Neither      party        has    challenged       any    of     the   referee's

findings of fact or legal conclusions about Attorney Ouchakof's
                                                8
                                                                                  No.     2002AP875-D



compliance with the standards for reinstatement.                                  Our own review

of the matter leads us to accept the referee's findings of fact.

Those    findings         show    that       for       nearly       all    of    the     period     of

revocation Attorney Ouchakof has maintained steady employment,

has     conducted         himself       in     an          exemplary       manner,        and      has

demonstrated the required competence and learning in the law.

We    therefore       agree      with    the       referee's         legal      conclusion        that

Attorney          Ouchakof     has      satisfied            the     requirements          for    the

reinstatement of his license to practice law in this state by

clear, satisfactory, and convincing evidence.

        ¶15       We further agree with the referee that in light of

Attorney Ouchakof's history of depression, it is appropriate to

impose        a    condition      on    his    practice             of    law     following       his

reinstatement.            We modify and clarify slightly the referee's

recommendation in this regard.                         We direct Attorney Ouchakof to

enter     into       an   agreement          with          WisLAP    for        the     purpose    of

monitoring his compliance with the recommendations of his health

care providers regarding his depression.                                 The duration of this
condition and his monitoring agreement with WisLAP should be a

period of one year from the date of his reinstatement.                                              We
impose       this    condition         not    as       a    punishment          or    sanction     on

Attorney Ouchakof, but rather out of concern for ensuring his
successful return to the practice of law, with all of its joys

and stresses.
       ¶16        Finally, we turn to the issue of costs.                             This court's

general policy in reinstatement proceedings, as in disciplinary

proceedings, is to require the attorney who is the subject of
                                                   9
                                                                           No.    2002AP875-D



those proceedings to pay the full costs of the reinstatement

proceeding.      The OLR's statement of costs indicates that the

costs    of    this     proceeding,         as    of     December     13,        2012,   were

$1,483.43,      against       which       Attorney       Ouchakof's         initial      $200

deposit must be applied.                  Attorney Ouchakof has not filed an

objection to the OLR's statement of costs, and we perceive no

basis    to    depart       from    our     general      policy       in    this     matter.

Accordingly, we will order Attorney Ouchakof to pay the full

remaining costs of these proceedings.

       ¶17    IT IS ORDERED that the petition for reinstatement of

the license of Boris Ouchakof to practice law in Wisconsin is

granted, effective the date of this order.

       ¶18    IT IS FURTHER ORDERED that, for a period of one year

from    the   date    of    this     reinstatement           order,   Boris       Ouchakof's

license to practice law in Wisconsin shall be subject to the

following condition:           Boris Ouchakof shall enter into and comply

with an agreement with the Wisconsin Lawyers Assistance Program

for     the   purpose        of     monitoring         his     compliance         with    the
recommendations        of     his    health       care    providers        regarding      his

depression.
       ¶19    IT IS FURTHER ORDERED that within 90 days of the date

of this order, Boris Ouchakof shall pay to the Office of Lawyer
Regulation all outstanding costs of this proceeding.

       ¶20    IT IS FURTHER ORDERED that compliance with all of the
terms of      this    order       remains   a     condition      of   Boris       Ouchakof's

license to practice law in Wisconsin.


                                             10
    No.   2002AP875-D




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