                                                              2014 WI 40

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP948-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Elizabeth Ewald-Herrick, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Elizabeth A. Ewald-Herrick,
                                  Respondent.



                         DISCIPLINARY PROCEEDINGS AGAINST EWALD-HERRICK

OPINION FILED:          June 19, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:

ATTORNEYS:
                                                                       2014 WI 40
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.   2013AP948-D


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Elizabeth Ewald-Herrick, Attorney at
Law:

Office of Lawyer Regulation,                                        FILED
           Complainant,                                        JUN 19, 2014
      v.                                                          Diane M. Fremgen
                                                               Clerk of Supreme Court
Elizabeth A. Ewald-Herrick,

           Respondent.




      ATTORNEY      disciplinary     proceeding.         Attorney         publicly

reprimanded.


      ¶1   PER   CURIAM.    In     this   disciplinary        proceeding,        the

referee concluded that the Office of Lawyer Regulation (OLR) had

proven the one count of misconduct contained in the complaint

filed by the OLR against Attorney Elizabeth A. Ewald-Herrick.

The OLR claimed that by committing her fourth operating while

intoxicated (OWI) offense in five years, Attorney Ewald-Herrick

committed a criminal act that reflects adversely on her fitness
                                                                      No.     2013AP948-D



as a lawyer and thereby violated SCR 20:8.4(b).1                       Based on this

violation, the referee recommended that Attorney Ewald-Herrick

be publicly reprimanded and that various conditions be placed on

her license directed toward her treatment for alcohol abuse.

     ¶2     Attorney Ewald-Herrick did not appeal the referee's

report and recommendation.          Instead, she wrote a letter to this

court stating, among other things, that she had no objection to

the imposition of a public reprimand, but that she saw no point

in   complying       with     and   paying         for    court-ordered         alcohol

monitoring    when      she   intended       to     resign    her     Wisconsin      law

license.     Attorney Ewald-Herrick has since filed a petition to

voluntarily resign her law license pursuant to SCR 10.03(7)(a).2

     ¶3     The   OLR    recommends   that         this     court:      (1)    publicly

reprimand    Attorney       Ewald-Herrick         without    any     conditions;     (2)

accept her petition to voluntarily resign her law license; and

     1
       SCR 20:8.4(b) states it is professional misconduct for a
lawyer to "commit a criminal act that reflects adversely on the
lawyer's honesty, trustworthiness or fitness as a lawyer in
other respects; . . . ."
     2
         SCR 10.03(7)(a) states as follows:

          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.

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(3)    order     the    OLR,      if     Attorney       Ewald-Herrick      applies      for

readmission, to investigate whether conditions should be imposed

on her license.

       ¶4     After independently reviewing the record, we determine

that    the     facts       as    found    by     the    referee     demonstrate        the

misconduct charged by the OLR——a violation of SCR 20:8.4(b).                               We

conclude that Attorney Ewald-Herrick's professional misconduct

requires a public reprimand.                We grant Attorney Ewald-Herrick's

petition to voluntarily resign her Wisconsin law license.                                  We

condition any future readmission to the State Bar of Wisconsin

on her submission to an alcohol and other drug abuse (AODA)

evaluation       by     a    professional        AODA        counselor    or     treatment

provider, with the results of the evaluation to be submitted to

the OLR for its review and consideration.                        Finally, we conclude

that Attorney Ewald-Herrick should be required to pay 50 percent

of the costs of this proceeding.

       ¶5     Attorney Ewald-Herrick has been admitted to practice

law    in      Wisconsin         since    1989.          Attorney        Ewald-Herrick's
disciplinary        history       consists       of     an     October    2008     private

reprimand for professional misconduct consisting of a criminal

act; namely, a 2007 conviction for third offense OWI.                                  This

court held that Attorney Ewald-Herrick's conviction reflected

adversely      on     her   honesty,      trustworthiness,         or     fitness     as    a

lawyer in other respects.                 See Private Reprimand No. 2008-31;

see also SCR 20:8.4(b).

       ¶6     On April 25, 2013, the OLR filed a complaint against
Attorney Ewald-Herrick alleging that in 2012, Attorney Ewald-
                                             3
                                                                           No.        2013AP948-D



Herrick pled guilty to and was convicted of a fourth offense

OWI.     The OLR claimed that by committing her fourth OWI offense

in five years, Attorney Ewald-Herrick committed a criminal act

that reflects adversely on her fitness as a lawyer and thereby

violated SCR 20:8.4(b).                The OLR asked this court to publicly

reprimand Attorney Ewald-Herrick and to order her to:                                 (1) enter

into     a        monitoring       contract          with    the      Wisconsin        Lawyers'

Assistance         Program     (WisLAP)     with       various      conditions;        and   (2)

sign reciprocal releases of confidentiality for each treatment

provider who is providing or has provided AODA or mental health

related treatment or services to her during the preceding five

years.

       ¶7         Attorney Ewald-Herrick admitted service of the OLR's

complaint, but did not file an answer.

       ¶8         On    June   17,    2013,      the        parties     filed     a     written

stipulation by which Attorney Ewald-Herrick pled no contest to

the SCR 20:8.4(b) violation alleged in the OLR's complaint.                                  The

stipulation            requested     that   an       assigned      referee      approve      the
stipulation and schedule further proceedings to determine the

appropriate sanction.

       ¶9         The   referee,     Hannah      C.     Dugan,      held   several       status

conferences.              Although      there         is    no     transcript     of      these

conferences in the record, it appears undisputed that Attorney

Ewald-Herrick stated during these conferences that she did not

object       to    a    public     reprimand.          Attorney       Ewald-Herrick          also

stated, however, that because it was her intent to surrender her
law license, she saw no reason to agree to the conditions on her
                                                 4
                                                                    No.   2013AP948-D



license sought by the OLR.               Attorney Ewald-Herrick also stated

that she did not want to incur the costs associated with any

briefing or hearing associated with the OLR's complaint.

      ¶10     In a written order, the referee directed the parties

to brief the issue of "why a hearing or a greater sanction is

not   appropriate     given      the   facts    and   the   respondent's     stated

refusal" to enter into a monitoring contract with WisLAP.                        The

OLR   filed    a   brief    stating      that   its   sanction      recommendation

remained unchanged because discipline should not be imposed in

anticipation of future non-compliance with a disciplinary order,

and because any future non-compliance could be addressed at the

time it occurs.          Attorney Ewald-Herrick did not file a response

to the OLR's brief.

      ¶11     The referee filed a report on September 30, 2013.                  The

referee accepted Attorney Ewald-Herrick's no contest plea and

found that by committing her fourth OWI offense in five years,

Attorney Ewald-Herrick committed a criminal act that reflected

adversely     on   her     fitness     as   a   lawyer   and   thereby     violated
SCR 20:8.4(b).       The referee recommended a public reprimand and

the imposition of the following conditions:

         Enter into a monitoring contract with WisLAP, via OLR

          referral, and fully comply with the conditions of the

          contract, which may include, but may not be limited to:

          o Abstain       from   using      alcohol   and   other    mood-altering

              substances, unless prescribed by a licensed physician

              and approved by WisLAP;


                                            5
                                                                             No.    2013AP948-D



        o Upon        WisLAP's     request,        undergo       an    AODA        and    mental

           health         assessment       by    a      professional           selected         by

           WisLAP;

        o Comply          with     all     treatments         recommended                by    the

           assessment or treatment professionals;

        o Submit to monitoring by a person selected by WisLAP,

           comply with all conditions and reporting requirements

           WisLAP         deems     appropriate,           and        comply        with       all

           obligations under WisLAP's policies;

        o Submit to random alcohol and substance abuse testing

           as WisLAP determines appropriate; and

        o Pay       any     and    all      costs       incurred        for        monitoring,

           including, but not limited to, costs for treatment,

           random alcohol and drug screens, and other activities

           required to stay in compliance with WisLAP monitoring

           conditions.

         Sign    reciprocal       releases        of    confidentiality             for      each

          treatment provider who is providing or has provided AODA
          or     mental     health       related        treatment       or     services        to

          Attorney Ewald-Herrick during the preceding five years,

          so   that    such      treatment      providers        may    share        pertinent

          information       with     each       other,     with       WisLAP,        with      the

          professional selected to conduct an assessment, and with

          the OLR.

    ¶12    The        referee      wrote        that       these        sanctions             were

appropriate in light of, among other things, Attorney Ewald-
Herrick's "statements of intent not to comply with disciplinary
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                                                                     No.   2013AP948-D



orders and marginal cooperation in the disciplinary process,"

including her failure to file a brief regarding sanctions.                           The

referee wrote that Attorney Ewald-Herrick's statements at the

status conferences "do not reflect remorse for the conduct to

which she already pled."               The referee also stated that Attorney

Ewald-Herrick         showed      an    inadequate      understanding         of     the

seriousness of her misconduct.

      ¶13     On October 28, 2013, Attorney Ewald-Herrick filed a

letter      with    the   court    objecting      to   certain      aspects    of    the

referee's report.          Attorney Ewald-Herrick stated that she was

not appealing the referee's report and recommendation.3                       Attorney

Ewald-Herrick did, however, dispute the referee's charge that

she   was    unremorseful      and      unaware   of   the    seriousness      of    her

misconduct.         Attorney Ewald-Herrick stated that she was fully

aware of the seriousness of her misconduct; that she had been

sober since August 2012; that she had completed a 28-day in-

patient program; that she attends individual counselling weekly;

and that she participates in two Alcoholics Anonymous meetings
per week.          Attorney Ewald-Herrick stated, however, that "I do

not believe that I can remain sober while practicing law.                           As a

result, I have decided to leave the practice of law."                         Attorney

Ewald-Herrick also stated that she could not afford the cost of

WisLAP      monitoring,     and    that    she    wanted     only    "to   leave     the


      3
        We note that Attorney Ewald-Herrick's letter, filed
October 28, 2013, could not have served as a timely appeal from
the referee's September 30, 2013 report and recommendation. Cf.
SCR 22.17(1) (appeal from the referee's report must be filed
within 20 days after the filing of the referee's report).
                                           7
                                                                              No.    2013AP948-D



practice of law without incurring a huge debt."                             Attorney Ewald-

Herrick      stated     that      although      she      had     no    objection        to      the

imposition of a public reprimand, she saw no point in complying

with and paying for WisLAP monitoring when she had no intention

to practice law.

       ¶14    Attorney Ewald-Herrick also requested the waiver of

costs, which total $1,254.65 as of October 21, 2013.                                   Attorney

Ewald-Herrick         stated      that    costs      had    been       "the    focus       of    my

concern" throughout the disciplinary proceeding because of her

financial       troubles.         Attorney         Ewald-Herrick        stated        that      she

urged the referee not to order any briefing because she knew

that    costs      would    be    assessed      against         her.        Attorney       Ewald-

Herrick      claims    that      the     referee     ordered      briefing          nonetheless

because the referee did not know "how to handle a lawyer who

agreed with the discipline (a public reprimand) but did not

agree to comply with conditions."

       ¶15    On    January       22     and   February         13,    2014,        this     court

ordered      Attorney        Ewald-Herrick          to     formalize          her    position.
Specifically, the court ordered that she petition the court for

a voluntary resignation of her law license, if that was her

intent.       See     SCR    10.03(7).         On    February         21,    2014,     Attorney

Ewald-Herrick filed a petition for voluntary resignation.

       ¶16    This court then ordered the OLR to file a response to

Attorney Ewald-Herrick's petition for voluntary resignation, and

to     specifically         discuss      whether         this    court        should       accept

Attorney Ewald-Herrick's resignation.                      In its response, the OLR
recommended        that     the    court       accept      Attorney         Ewald-Herrick's
                                               8
                                                                      No.    2013AP948-D



petition for resignation and publicly reprimand her without any

conditions.       The OLR further recommended that the court order

the OLR, if Attorney Ewald-Herrick applies for readmission, to

investigate whether conditions should be imposed on her license.

       ¶17   After     having    independently         reviewed     the     record,     we

adopt the referee's findings of fact.                     See In re Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43,

675    N.W.2d 747.       We   also    agree     with     the   referee      that   those

factual      findings     demonstrate           that     Attorney         Ewald-Herrick

committed a criminal act (fourth offense OWI) that reflected

adversely on Attorney Ewald-Herrick's honesty, trustworthiness,

or fitness as a lawyer in other respects.                      See SCR 20:8.4(b);

see also In re Disciplinary Proceedings Against Brandt, 2009 WI

43, ¶¶42-45, 317 Wis. 2d 266, 766 N.W.2d 194 (holding that a

pattern of multiple OWI convictions can demonstrate a serious

lack    of   respect    for     the   law   that       reflects     adversely      on   an

attorney's "fitness as a lawyer in other respects" under SCR

20:8.4(b) and can support a public reprimand).                        We also agree
that a public reprimand is appropriate discipline for Attorney

Ewald-Herrick's        misconduct     in    this   matter.          See    Brandt,      317

Wis. 2d 266, ¶45.

       ¶18   We    decline      to    impose       the     referee's        recommended

conditions        on    Attorney       Ewald-Herrick's            license       (WisLAP

monitoring and medical release authorizations for AODA or mental

health    records).       Because     we    accept       Attorney    Ewald-Herrick's

unopposed petition for voluntary resignation of her law license,
there is no need to impose conditions on her license.
                                            9
                                                                                 No.     2013AP948-D



       ¶19    We   are        mindful       of    our     precedent       holding       that    this

court must not allow an attorney to resign from the practice of

law     in   order       to     avoid        the     imposition        of      discipline       for

unprofessional           conduct.                See,     e.g.,      In     re     Disciplinary

Proceedings Against Schalow, 131 Wis. 2d 1, 6, 388 N.W.2d 176

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

Wis. 2d 446,       452-453,           380    N.W.2d 367        (1986).           Here,    Attorney

Ewald-Herrick           is    not      avoiding         discipline        by     resigning       her

license.          As    explained           above,      we    have    decided      to     publicly

reprimand Attorney Ewald-Herrick for her misconduct.                                      We elect

not to impose conditions on a law license that she has decided

to surrender.

       ¶20    We   advise           Attorney       Ewald-Herrick          that    we     take   very

seriously the fact that her professional misconduct stems from

her    demonstrated           alcohol       abuse       problem.       If      Attorney     Ewald-

Herrick chooses in the future to petition for readmission to the

State Bar of Wisconsin, she must submit to an AODA evaluation by

a     professional           AODA     counselor         or    treatment        provider;        this
evaluation will assess Attorney Ewald-Herrick's substance abuse

history and current status and make specific recommendations for

any necessary continuing treatment.                           A copy of the written AODA

evaluation shall be submitted to the OLR for its review and

consideration and shall be maintained by it as confidential.

       ¶21    Finally, we turn to the issue of costs.                              Both the OLR

and the referee maintain that Attorney Ewald-Herrick should be

made    to   pay       the     full     costs        of      this    disciplinary         matter——
$1,254.65 as of October 21, 2013——consistent with the court's
                                                   10
                                                                               No.    2013AP948-D



general practice to levy the full costs                             of the disciplinary

proceeding on the respondent attorney.                         See SCR 22.24(1m).              As

mentioned earlier, Attorney Ewald-Herrick asks for a waiver of

costs because she is in poor financial shape and because the

costs   in    this    case    were          partially      driven    by    a    dispute       over

possible      conditions       on    her       law     license——a         license      she    has

consistently stated she wanted to surrender.

       ¶22    We agree with Attorney Ewald-Herrick that a reduction

in costs is warranted.               It would be unfair to Attorney Ewald-

Herrick to impose all of the costs of litigating the conditions

to be imposed on a law license that she has resigned consistent

with    her        stated     intentions             throughout      this           disciplinary

proceeding.

       ¶23    However, we reject Attorney Ewald-Herrick's assertion

that we should assess no costs at all.                          Attorney Ewald-Herrick

has    been   determined       to    have       committed      the    misconduct         charge

brought       by    the     OLR.             This      misconduct——a           violation       of

SCR 20:8.4(b)        caused    by       a    fourth       offense   OWI    conviction——was
undeniably serious, and this is the second time that Attorney

Ewald-Herrick         has     been          disciplined       for     a     drunk       driving

conviction.         These factors weigh against a reduction in costs.

See SCR 22.24(1m)(a), (b), (e).

       ¶24    On    balance,       we       deem     it    appropriate         to    impose    50

percent of the costs on Attorney Ewald-Herrick, or $627.33. Our

determination is not the result of the application of a precise

mathematical formula, but is based on our thorough consideration


                                                11
                                                                      No.     2013AP948-D



of the record, the unusual posture of this case, and the factors

set forth in SCR 22.24(1m).

      ¶25   IT    IS    ORDERED    that    Elizabeth         A.    Ewald-Herrick        is

publicly reprimanded for her professional misconduct.

      ¶26   IT    IS    FURTHER    ORDERED          that    Elizabeth        A.   Ewald-

Herrick's petition for voluntary resignation of her Wisconsin

law license is granted and her license is hereby surrendered.

      ¶27   IT IS FURTHER ORDERED that any future readmission of

Elizabeth A. Ewald-Herrick to the State Bar of Wisconsin is

conditioned      on    her   submission        to   an     AODA    evaluation      by    a

professional AODA counselor or treatment provider.                           A copy of

the written AODA evaluation shall be submitted to the Office of

Lawyer Regulation for its review and consideration and shall be

maintained by it as confidential.

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

of   this   order,     Elizabeth    A.    Ewald-Herrick           shall     pay   to    the

Office of Lawyer Regulation costs in the amount of $627.33.

      ¶29   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.




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    No.   2013AP948-D




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