                                                            2020 WI 18

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2019AP2271-D


COMPLETE TITLE:        In the Matter of Medical Incapacity Proceedings
                       Against Tracey A. B., Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant,
                            v.
                       Tracey A. B.,
                                 Respondent.

                         Medical Incapacity Proceedings Against A.B.

OPINION FILED:         February 19, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
NOT PARTICIPATING:




ATTORNEYS:
                                                                   2020 WI 18
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
No.    2019AP2271-D


STATE OF WISCONSIN                       :              IN SUPREME COURT

In the Matter of Medical Incapacity Proceedings
Against Tracey A. B., Attorney at Law:

Office of Lawyer Regulation,                                     FILED
           Complainant,
                                                            FEB 19, 2020
      v.
                                                                Sheila T. Reiff
                                                            Clerk of Supreme Court
Tracey A. B.,

           Respondent.




      Medical    Incapacity     Proceeding.       Attorney's           license

indefinitely suspended.



      ¶1   PER CURIAM.    This matter involves a Wisconsin attorney,

Tracey A. Berry, who is also licensed to practice law in Tennessee.

On July 29, 2019, the Supreme Court of Tennessee issued an order

transferring Attorney Berry to disability inactive status for an

indefinite period of time.      Accordingly, the Office of Lawyer

Regulation (OLR) has informed the court, and Attorney Berry does

not dispute,    that Attorney Berry is subject to a reciprocal
suspension for medical incapacity in Wisconsin.               Supreme Court
                                                    No.   2019AP2271-D



Rule (SCR) 22.22.1   The OLR and Attorney Berry filed a stipulation

pursuant to SCR 22.12, agreeing that Attorney Berry's license to


     1   SCR 22.22 provides:

          (1) An attorney on whom public discipline for
     misconduct or a license suspension for medical
     incapacity has been imposed by another jurisdiction
     shall promptly notify the director of the matter.
     Failure to furnish the notice within 20 days of the
     effective date of the order or judgment of the other
     jurisdiction constitutes misconduct.

          (2) Upon the receipt of a certified copy of a
     judgment or order of another jurisdiction imposing
     discipline for misconduct or a license suspension for
     medical incapacity of an attorney admitted to the
     practice of law or engaged in the practice of law in
     this state, the director may file a complaint in the
     supreme court containing all of the following:

          (a) A certified copy of the judgment or order from
     the other jurisdiction.

          (b) A motion requesting an order directing the
     attorney to inform the supreme court in writing within
     20 days of any claim of the attorney predicated on the
     grounds set forth in sub. (3) that the imposition of the
     identical discipline or license suspension by the
     supreme court would be unwarranted and the factual basis
     for the claim.

          (3) The supreme court shall impose the identical
     discipline or license suspension unless one or more of
     the following is present:

          (a) The procedure in the other jurisdiction was so
     lacking in notice or opportunity to be heard as to
     constitute a deprivation of due process.

          (b) There  was   such     an   infirmity  of   proof
     establishing the misconduct    or medical incapacity that
     the supreme court could       not accept as final the
     conclusion in respect to      the misconduct or medical
     incapacity.

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practice law in Wisconsin should be suspended indefinitely for her

medical incapacity.    After reviewing the matter, we approve the

stipulation.   We impose no costs in this matter.

     ¶2   Attorney Berry was admitted to the practice of law in

Wisconsin in 2003.    She was admitted to the practice of law in

Tennessee in 2004.     Attorney Berry's most recent professional

address is in Tennessee.

     ¶3   Attorney    Berry   has   not   been   the    subject    of   any

professional discipline in this state.       Her license to practice

law in Wisconsin has been administratively suspended since October




          (c) The    misconduct   justifies            substantially
     different discipline in this state.

          (4) Except as provided in sub. (3), a final
     adjudication in another jurisdiction that an attorney
     has engaged in misconduct or has a medical incapacity
     shall be conclusive evidence of the attorney's
     misconduct or medical incapacity for purposes of a
     proceeding under this rule.

          (5) The supreme court may refer a complaint filed
     under sub. (2) to a referee for a hearing and a report
     and recommendation pursuant to SCR 22.16.        At the
     hearing, the burden is on the party seeking the
     imposition of discipline or license suspension different
     from that imposed in the other jurisdiction to
     demonstrate that the imposition of identical discipline
     or license suspension by the supreme court is
     unwarranted.

          (6) If the discipline or license suspension imposed
     in the other jurisdiction has been stayed, any
     reciprocal discipline or license suspension imposed by
     the supreme court shall be held in abeyance until the
     stay expires.

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                                                                 No.     2019AP2271-D



31, 2009 for failure to pay bar dues and assessments and for

failure to file a trust account certificate.

       ¶4       On December 2, 2019, the OLR filed a complaint stating

that       on   July   25,   2019,    the    Tennessee   Board   of    Professional

Responsibility filed a Petition to Transfer Attorney Berry to

Disability Inactive Status.             On July 29, 2019, the Supreme Court

of Tennessee issued an order that transferred Attorney Berry to

disability inactive status for an indefinite period of time until

further order of that court.                  In Re: Tracey Alice Berry, BPR

#023508, case no. M2019-01350-SC-BAR-BP.                   The Tennessee order

provides        that   Attorney      Berry   may   petition   for     reinstatement

pursuant to Tenn. Sup. Ct. R. 9, §27.7.2

       2 Tenn. Sup. Ct. R. 9, §27.7 provides in pertinent part
       as follows:

            (a) No attorney transferred to disability inactive
       status pursuant to Section 27 may resume active status
       until reinstated by order of the Court. Any attorney
       transferred to disability inactive status pursuant to
       Section   27  shall   be  entitled   to  petition   for
       reinstatement to active status after the disability is
       removed. The petition for reinstatement shall be filed
       with the Court in the form adopted by the Board. The
       petitioner shall serve a copy of the petition upon
       Disciplinary Counsel, who shall investigate the matter
       and file an answer to the petition within thirty days.
       The answer shall include a recommendation as to whether
       the petition should be granted without a hearing or
       referred to a hearing panel for a hearing.

            (b) Upon the filing of a petition for reimbursement
       pursuant to Section 27, the Court may take or direct
       such action as it deems necessary or proper to a
       determination of whether the attorney's disability has
       been removed, including a direction for an examination
       of the attorney by such qualified medical or mental
       health experts as the Court shall designate and the
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                                                            No.     2019AP2271-D



       ¶5     After   service   of   the   OLR's   complaint,     the   OLR   and

Attorney Berry entered into a stipulation.           The stipulation states

that the Supreme Court of Tennessee order has essentially the same

force and effect that imposition of a medical incapacity suspension

would have on a Wisconsin licensed attorney's ability to practice

law.       Similarly, the criteria for Attorney Berry to reinstate her

Tennessee law license under Tenn. Sup. Ct. R. 9, §27.7 (a) and (b)

and §27.93 are substantially similar to the reinstatement criteria


       furnishing of such expert's report to the Board, the
       Court, and the attorney and the attorney's counsel. In
       its discretion, the Court may direct that the expense of
       such an examination shall be paid by the attorney, and
       that the attorney establish proof of competence and
       learning in law, which proof may include certification
       by the Board of Law Examiners of the successful
       completion of an examination for admission to practice.
       The Court also may refer the petition to a hearing panel
       for a hearing in which the petitioner shall have the
       burden of proof.     The hearing shall be governed by
       Section 30.4.    The petition shall be granted upon a
       showing by clear and convincing evidence that the
       attorney's disability has been removed and the attorney
       is fit to resume the practice of law.
       3   Tenn. Sup. Ct. R. 9, §27.9 provides as follows:

            The filing of a petition for reinstatement to
       active status by an attorney transferred to disability
       inactive status because of disability shall be deemed to
       constitute a waiver of any doctor-patient privilege with
       respect to any treatment of the attorney during the
       period of disability. The attorney shall be required to
       disclose the name of every psychiatrist, psychologist,
       physician and hospital or other institution by whom or
       in which the attorney has been examined or treated since
       the transfer to disability inactive status, and shall
       furnish to the Court written consent to each to divulge
       such information and records as requested by court
       appointed medical experts.

                                       5
                                                  No.   2019AP2271-D



considered by this court in medical incapacity proceedings.     See

SCR 22.36.4


     4   SCR 22.36 provides:

          (l) An attorney whose license to practice law is
     suspended or whose practice of law is subject to
     conditions for medical incapacity may petition the
     supreme court at any time for reinstatement of the
     license or the removal of conditions.

          (2) The supreme court shall refer the petition to
     the director for investigation to determine whether the
     attorney's medical incapacity has been removed.

          (3) The filing of a petition for reinstatement
     constitutes a waiver of any privilege existing between
     the petitioner and any psychiatrist, psychologist,
     physician or other health care provider that has
     provided care to the attorney. The petitioner shall
     disclose the name of every psychiatrist, psychologist,
     physician and other health care provider that has
     provided care following suspension or the imposition of
     conditions and shall furnish the director written
     consent to the release of information and records
     requested by the medical experts appointed by the
     director or a referee.

          (4) The   director  may  direct  a   medical  or
     psychological examination of the petitioner by such
     qualified experts as the director designates and may
     direct that the expense of the examination be paid by
     the petitioner.

          (5) Following the investigation, the petition shall
     be submitted to a referee. The clerk or deputy clerk of
     the supreme court shall select an available referee from
     the panel provided in SCR 21.08, based on the location
     of the respondent's place of residence, and the chief
     justice or, in his or her absence, the chief justice's
     delegee shall issue an order appointing the referee
     selected by the clerk or deputy clerk to review the
     petition.

          (6) The petitioner has the burden of showing by
     clear, satisfactory and convincing evidence that the
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                                                           No.   2019AP2271-D



      ¶6      In the stipulation, Attorney Berry agrees that the facts

alleged in the OLR's complaint support the imposition of an

indefinite suspension for medical incapacity.              Attorney Berry

states that she does not claim any of the exceptions provided in

SCR 22.22(3).      She agrees that it would be appropriate to suspend

her license to practice law in Wisconsin for an indefinite period

of time, as sought by the OLR.       Attorney Berry further states that

the stipulation did not result from plea bargaining, that she

understands what is stated in the OLR complaint, her right to

contest the matter, and she is aware of the potential ramifications

of the stipulation.       She acknowledges her right to consult with

counsel.      She states that she is entering into the stipulation

knowingly and voluntarily, and that her entry into the stipulation

represents her decision not to contest the suspension for medical

incapacity that is sought by the OLR.

      ¶7      Having reviewed the matter, we accept the stipulation

and   agree    that   Attorney   Berry's   license   to   practice    law   in


      medical incapacity has been removed and that the
      petitioner is fit to resume the practice of law, with or
      without conditions.

           (7) The referee shall hold a hearing on                   the
      petition, if necessary, and file a report                      and
      recommendation in the supreme court.

           (8) If an attorney whose license to practice law
      has been suspended for medical incapacity pursuant to
      SCR 22.35 is thereafter judicially declared to be no
      longer in the condition previously determined under Wis.
      Stat. chapter 51 or chapter 880 (1997-98), the supreme
      court may direct reinstatement of the attorney's
      license, with or without conditions.

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                                                                 No.     2019AP2271-D



Wisconsin should be suspended for an indefinite period of time for

medical incapacity, based on the actions of the Supreme Court of

Tennessee.       SCR 22.22.      Because this matter has been resolved by

stipulation without the appointment of a referee, we do not impose

any costs in this matter.

     ¶8     IT IS ORDERED that, effective the date of this order,

the license of Tracey A. Berry to practice law in Wisconsin is

suspended       for    an   indefinite   period    of     time   due   to   medical

incapacity,       based     on   the   Supreme    Court    of    Tennessee    order

transferring Attorney Berry to disability inactive status for an

indefinite period of time.             See In Re: Tracey Alice Berry, BPR

#023508, case no. M2019-01350-SC-BAR-BP.

     ¶9     IT IS FURTHER ORDERED that the administrative suspension

of Tracey A. Berry's license to practice law in Wisconsin, due to

her failure to pay mandatory bar dues and for failure to file a

trust account certification, will remain in effect until each

reason    for    the    administrative       suspension    has    been    rectified

pursuant to SCR 22.28(1).
     ¶10    IT IS FURTHER ORDERED that Tracey A. Berry shall comply

with the provisions of SCR 22.26 concerning the duties of a person

whose license to practice law in Wisconsin has been suspended.




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