                                                              2014 WI 32

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2011AP2760-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Daniel W. Johns, Jr., Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Appellant,
                             v.
                        Daniel W. Johns, Jr.,
                                  Respondent-Respondent.



                             DISCIPLINARY PROCEEDINGS AGAINST JOHNS

OPINION FILED:          June 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 23, 2013

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, C.J., dissents. (Opinion filed.)
   NOT PARTICIPATING:   BRADLEY, J., did not participate.

ATTORNEYS:
       For the Office of Lawyer Regulation there were briefs by
Thomas J. Basting Sr., Madison, and oral argument by Thomas J.
Basting Sr.




       For the respondent-respondent, there was a brief by Dean R.
Dietrich, and Ruder Ware L.L.S.C., Wausau, and oral argument by
Dean R. Dietrich.
                                                                              2014 WI 32
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.    2011AP2760-D


STATE OF WISCONSIN                                  :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Daniel W. Johns, Jr., Attorney at Law:

Office of Lawyer Regulation,                                               FILED
            Complainant-Appellant,
                                                                       JUN 6, 2014
      v.
                                                                         Diane M. Fremgen
                                                                      Clerk of Supreme Court
Daniel W. Johns, Jr.,

            Respondent-Respondent.




      ATTORNEY disciplinary proceeding.                 Complaint dismissed.



      ¶1    PER   CURIAM.        In    this    disciplinary          proceeding,        the

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

proven     violations     on   one     of     two    counts       contained       in    the

complaint    filed   by    the    OLR.        Based     on    that     violation,       the

referee    recommended     that       Attorney      Daniel     W.    Johns,      Jr.,     be

either privately or publicly reprimanded.                     The OLR appeals from

the referee's report and recommendation, arguing that the court

should determine that Attorney Johns committed both counts of
misconduct and should be suspended for 60 days.
                                                               No.    2011AP2760-D



      ¶2     After independently reviewing the record, we accept

the facts as found by the referee.            We agree with the referee's

conclusion     that   Attorney   Johns'     conduct    resulting      in   a   2004

felony conviction does not reflect adversely on his honesty,

trustworthiness, or fitness as a lawyer in other respects so as

to   violate   SCR    20:8.4(b).1      We   disagree    with    the    referee's

conclusion     that   Attorney      Johns   violated     SCR    21.15(5),2      as

enforced via SCR 20:8.4(f),3 by failing to notify the clerk of

the supreme court and the OLR, in writing, of his conviction.

We conclude that Attorney Johns' violation of SCR 21.15(5) was

too technical to justify the imposition of legal consequences.

Accordingly, the complaint is dismissed.



      1
       SCR 20:8.4(b) states that 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 21.15(5) provides:

           An attorney found guilty or convicted of any
      crime on or after July 1, 2002, shall notify in
      writing the office of lawyer regulation and the clerk
      of the [s]upreme [c]ourt within 5 days after the
      finding or conviction, whichever first occurs.     The
      notice shall include the identity of the attorney, the
      date of finding or conviction, the offenses, and the
      jurisdiction.   An attorney's failure to notify the
      office of lawyer regulation and clerk of the supreme
      court of being found guilty or his or her conviction
      is misconduct.
      3
       SCR 20:8.4(f) states that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."

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                                                                        No.       2011AP2760-D



      ¶3      Attorney Johns was admitted to the practice of law in

Wisconsin in 1999.          He has no disciplinary history.

      ¶4      On   November       30,    2011,    the     OLR    filed        a    two-count

complaint      against      Attorney      Johns.    This        court      appointed        the

Honorable James R. Erickson as referee.                         The referee held an

evidentiary hearing on June 28, 2012.                      Both parties submitted

post-hearing briefs.

      ¶5      The referee submitted a report containing his findings

of    fact,     conclusions        of     law,     and     a     recommendation             for

discipline.        The findings of fact incorporated a stipulation

between the parties and a series of exhibits attached to that

stipulation.          The findings of fact and conclusions of law are

summarized below.

      ¶6      When reviewing the referee's report, we will affirm

the   referee's       findings     of    fact    unless    they      are      found    to   be

clearly erroneous, but we will review the referee's conclusions

of law on a de novo basis.                See In re Disciplinary Proceedings

Against       Inglimo,      2007    WI     126,     ¶5,        305   Wis. 2d 71,            740
N.W.2d 125.

      ¶7      Shortly before 1:00 a.m. on December 28, 2002, when he

was 29 years old, Attorney Johns was the driver in a deadly one-

vehicle       drunk     driving     accident.             Earlier       that        evening,

Attorney Johns        had   met    his    father,       stepmother,         brother,        and

other family members at a restaurant in northern Wisconsin to

celebrate the holidays.             After dinner, Attorney Johns and his

brother stayed at the restaurant bar with friends.                                 When the
restaurant      closed,      Attorney      Johns    and        his   brother        left    in
                                            3
                                                                         No.     2011AP2760-D



Attorney      Johns'        pickup    truck,       with    Attorney      Johns     driving.

According      to     the    police      report,     it    is     unlikely     that   either

Attorney       Johns        or    his      brother        were     wearing       seatbelts.

Attorney Johns drove too fast as he turned from U.S. Highway 51

onto   a     county    highway.           Attorney       Johns    lost   control      of   the

truck, causing it to skid off the roadway and strike a tree.

Attorney Johns' brother was partially ejected from the truck;

his    head    hit     the       tree,     causing       fatal     injuries.          Medical

personnel arrived at the scene and transported Attorney Johns'

brother to the hospital, where he was declared dead.

       ¶8     Attorney Johns was also transported to the hospital.

He was in great distress over his brother's death.                             He had a cut

above his eye, but did not permit medical staff to treat his

injury.       He also had a strong odor of intoxicants and slurred

speech.

       ¶9     Police        concluded      that,     given       Attorney      Johns'      head

injury and emotional state, standard field sobriety exercises

would be inaccurate and inappropriate.                           Attorney Johns refused
to submit to a blood draw.                  A police officer directed hospital

personnel       to     draw       a      sample     of     Attorney      Johns'       blood.

Attorney Johns had a blood alcohol content of .257%.

       ¶10    Attorney Johns was arrested and, after being read his

warnings under Miranda v. Arizona, 384 U.S. 436 (1966), declined

to answer any questions and invoked his right to counsel.

       ¶11    On June 10, 2004, Attorney Johns pled guilty to and

was convicted of one count of homicide by use of a vehicle with


                                               4
                                                                No.     2011AP2760-D



a prohibited alcohol concentration.              Attorney Johns has no other

criminal history.

      ¶12    Before   the   circuit      court    accepted     Attorney     Johns'

plea, there was some confusion amongst the parties and the court

as to whether a conviction on this count would result in an

automatic      revocation       of    Attorney       Johns'       law     license.

Attorney Johns' lawyer stated that it was his understanding that

a felony conviction would not result in an automatic revocation

of Attorney Johns' law license, but rather that the OLR would

need to examine the nature of the crime and its relation to

Attorney Johns' fitness to practice law.                   The circuit court

expressed uncertainty on this point.              The circuit court ordered

a   recess   and    directed    the   prosecutor,       defense    counsel,     and

Attorney Johns to telephone the OLR and resolve the issue.                     They

did so in an off-the-record telephone conversation.

      ¶13    When     the      parties       returned     on      the      record,

Attorney Johns' lawyer stated as follows:

           Judge, we were successful in getting hold of the
      Office of Lawyer Regulation. We talked to the deputy
      director, John O'Connell is his name, and he advised
      us that my understanding of what would happen here
      with regard to OLR action was correct and I actually
      advised Mr. Johns correctly regarding all of that.

           To summarize, in the State of Wisconsin there is
      not any provision that calls for an automatic
      revocation or suspension of license based solely upon
      the felony conviction.   Mr. O'Connell referenced the
      standards that I referenced previously on the record,
      and that if there were any action taken, it would bear
      upon Mr. Johns' fitness to practice law and would not
      relate to the nature, the classification of the


                                         5
                                                                            No.     2011AP2760-D


     conviction but rather the facts and circumstances of
     the conduct.
     ¶14      With this explanation on the record, the circuit court

accepted      Attorney      Johns'       plea       and    entered         a      judgment         of

conviction.         The circuit court sentenced Attorney Johns to 120

days in jail, with five years of probation.

     ¶15      Attorney Johns served his jail time and was released

on   probation.            At    the     halfway        point    of        Attorney      Johns'

probation, his probation agent recommended that he petition for

early termination of probation.                    The circuit court supported an

early termination, noting in a letter to the district attorney

Attorney Johns' "extraordinary record of community service" and

his "180-degree turnabout" from the behavior that led to the

deadly drunk driving accident.                  Attorney Johns was released from

probation two-and-a-half years early, on May 14, 2007.

     ¶16      Attorney      Johns      began       practicing     law      again.            He    is

currently a full-time solo practitioner.

     ¶17      In    December      2010    a     third     party——revealed               at    oral

argument to be the Milwaukee Journal Sentinel——informed the OLR
of Attorney Johns' 2004 conviction.                     This proceeding followed.

     ¶18      The    OLR   brought       two    counts     against         Attorney      Johns.

Count   One    alleged      a     violation        of   SCR     20:8.4(b)         due    to       the

conduct resulting in Attorney Johns' 2004 conviction.                                Count Two

alleged    a        violation       of    SCR       21.15(5),         as       enforced           via

SCR 20:8.4(f), because Attorney Johns failed to notify the clerk

of the supreme court and the OLR, in writing, of his felony
conviction in 2004.             The OLR sought a 60-day suspension.


                                               6
                                                                                   No.       2011AP2760-D



       ¶19    In his answer to the OLR complaint, Attorney Johns

denied       that     his     conduct       resulting            in     his     2004         conviction

reflected adversely on his honesty, trustworthiness, or fitness

as a lawyer in other respects so as to violate SCR 20:8.4(b).

Attorney      Johns     also       denied       that       he    had     committed           misconduct

under SCR 21.15(5); he admitted that he did not provide written

notice of the felony conviction, but explained that he and his

lawyer    spoke       with     the        OLR   on     the        date    of       the       conviction

regarding       the    possible       impact          of    the       conviction         on    his    law

license.

       ¶20    On      September       21,       2012,        and       after       a     disciplinary

hearing, the referee filed a report.                            The referee concluded that

Attorney Johns did not violate SCR 20:8.4(b).                                  The referee wrote

that the "commission of a criminal act by a Wisconsin licensed

lawyer does not, per se, constitute professional misconduct."

Such a bright line approach, the referee wrote, "would preclude

each     case       from     being        carefully             considered         based        on   the

individual       facts       and    circumstances               surrounding            each    criminal
offense and how those facts reflected upon the lawyer's honesty,

trustworthiness or fitness as a lawyer in other respects."                                            The

referee       concluded            that     the        OLR        had     not          proven        that

Attorney Johns'             crime    reflected             adversely          on       his     honesty,

trustworthiness, or fitness as a lawyer in other respects.                                            The

referee wrote:

            The evidence in this case clearly shows that the
       crime committed by [Attorney Johns] was a once in a
       lifetime aberration in his otherwise fine behavior.
       Except for this one specific and tragic event,

                                                  7
                                                                 No.     2011AP2760-D


    [Attorney Johns] has led an exemplary personal and
    professional life.    There is no evidence that points
    to even a hint of any other kind of personal or
    professional misconduct. There have been no prior
    reprimands.    There is no evidence of any fraud,
    deceit,   dishonesty,   cheating,  client   abuse,  or
    malpractice in any of his behavior. There is no other
    criminal record.

         [Attorney Johns] is a highly regarded and
    contributing member of his community and of the legal
    profession.   He is a credit to the legal profession.
    In my opinion, a sanction of law license suspension is
    unwarranted.    While it is true that the very long
    delay in bringing the disciplinary proceedings [has]
    given [Attorney Johns] years to accumulate his present
    fine standing, the evidence is allowed and is very
    impressive.
    ¶21    Thus, the referee recommended that the court dismiss

Count One's allegation of a violation under SCR 20:8.4(b).

    ¶22    As     to     Count       Two,       the   referee    concluded        that

Attorney Johns violated SCR 21.15(5) by failing to send written

notice of his 2004 felony conviction to the OLR and to the

supreme court clerk.          The referee wrote that although Attorney

Johns' and his lawyer's phone call with the OLR on the date of

the plea hearing in the criminal case might have provided actual

notice    to    the    OLR,     it    was       insufficient    to     comply     with

SCR 21.15(5), which requires written notice to both the OLR and

the supreme court clerk.

    ¶23    As for discipline, the referee recommended a private

reprimand,     "unless    the    Court      should    conclude   that     a     public

reprimand is more appropriate in order to deter other Wisconsin

attorneys from also violating [SCR 21.15(5)]."




                                            8
                                                                                No.     2011AP2760-D



    ¶24     The        OLR         appeals              the     referee's            report     and

recommendation.          The OLR makes five main points on appeal.

    ¶25     First,           the         OLR        argues        that        the          referee's

recommendation         was     inconsistent              with     Wisconsin       precedent       on

attorney    discipline          for      homicide             while   driving         drunk.     In

support of this proposition, the OLR cites In re Disciplinary

Proceedings Against Stearn, 2004 WI 73, 272 Wis. 2d 141, 682

N.W.2d 326,       in     which       the        court         granted    Attorney          Stearn's

petition for consensual license revocation under SCR 22.19 after

he was convicted of homicide by intoxicated use of a vehicle and

causing    great       bodily      harm        by    intoxicated        use     of     a    vehicle.

Attorney      Stearn          received              a     12-year        prison            sentence.

Attorney Stearn conceded that he could not successfully defend

against    the     OLR    misconduct            allegations,            which     included      the

assertion     that        his       convictions               established        conduct        that

reflected adversely on his honesty, trustworthiness or fitness

as a lawyer in other respects, contrary to SCR 20:8.4(b).

    ¶26     Second, the OLR argues that this court has found a
nexus between a criminal act and a lawyer's fitness in cases

involving     far      less     serious             criminal      convictions          than     that

present here.           See Inglimo, 305 Wis. 2d 71, ¶¶49-55 (holding

that attorney's marijuana usage with and delivery to clients

reflected adversely on his fitness as a lawyer).

    ¶27     Third,       the       OLR    notes         that     in   other      jurisdictions,

attorneys who have been convicted of vehicular homicide have

received suspensions ranging from 18 months to disbarment.                                       See
In re Janklow, 709 N.W.2d 28 (S.D. 2006) (26-month suspension
                                                    9
                                                                   No.       2011AP2760-D



for a manslaughter conviction after lawyer, who was not under

the influence of drugs or alcohol, ran a stop sign and collided

with   another      vehicle);     State   ex     rel.   Oklahoma       Bar    Ass'n     v.

Wyatt, 32 P.3d 858 (Okla. 2001) (disbarment for a manslaughter

conviction     resulting     from    drunk     driving    accident);          Office    of

Disciplinary     Counsel     v.   Michaels,      527    N.E.2d 299         (Ohio     1988)

(18-month suspension following deadly drunk driving accident);

In re Morris, 397 P.2d 475 (N.M. 1964) (indefinite suspension

for    involuntary     manslaughter       conviction      resulting        from      drunk

driving      accident;      lawyer    could      apply     for     termination          of

suspension after the later of one year following disciplinary

order, or upon completion of sentence, or upon being restored to

all civil rights); In re Hoare, 155 F.3d 937 (8th Cir. 1998)

(disbarment      for   an    aggravated        reckless     homicide         conviction

resulting from drunk driving accident).

       ¶28   Fourth, the OLR argues that on the facts of this case,

a 60-day suspension is appropriate.               It points out that in In re

Disciplinary        Proceedings      Against      Brandt,       2012     WI     8,     338
Wis. 2d 524,     808     N.W.2d 687,      this   court    imposed      a     four-month

suspension     on    Attorney     Brandt,      consistent       with   the     parties'

stipulation, after he received a felony conviction in Minnesota

of first-degree driving while intoxicated within ten years of

the first of three or more qualified prior impaired driving

incidents.       The   OLR   also    points      out    that,    according        to   the

Washington Supreme Court, a suspension of some length of time

"is the appropriate sanction for every vehicular homicide."                             In
re Disciplinary Proceedings Against Curran, 801 P.2d 962, 974
                                          10
                                                                                 No.     2011AP2760-D



(Wash.       1990).        The       OLR   further         claims        that   this     court     has

imposed significant suspensions for crimes far less serious than

homicide       by      use      of    a     vehicle         with     a     prohibited       alcohol

concentration.               See,      e.g.,         In    re     Disciplinary         Proceedings

Against Mross, 2003 WI 4, 259 Wis. 2d 8, 657 N.W.2d 342 (90-day

suspension        for     lawyer's         unlawful         sale    of    cigarettes       to     jail

inmates while visiting his clients in jail).

      ¶29      Fifth, and finally, the OLR argues that the referee

erred by admitting 21 letters from juveniles in the Lincoln

Hills School, a juvenile correctional institution in Wisconsin.

As a form of community service, Attorney Johns gave talks to

classes      at     the    Lincoln         Hills      School       concerning      his     personal

history.          In      the    letters        at    issue,       the     students       expressed

appreciation for Attorney Johns' time and message.                                         The OLR

cites    In    re      Disciplinary          Proceedings           Against       Eisenberg,        117

Wis. 2d 332, 344 N.W.2d 169 (1984), in which this court held

that the referee erred by receiving into evidence 67 letters of

character reference by attorneys and others who did not testify
at    the     disciplinary            hearing         and        whose     statements        as    to

Attorney Eisenberg's character were not made under oath.                                     Id. at

338-39.

      ¶30      We begin by discussing the alleged failure-to-notify

violation         under      SCR     21.15(5).              The    referee       concluded        that

Attorney       Johns       committed        a   failure-to-notify               violation       under

SCR 21.15(5).             Although Attorney Johns did actually inform the

OLR     of    his      conviction          through         his     lawyer's       off-the-record
telephone      conversation            with     an        OLR    official       during    his     plea
                                                     11
                                                                   No.     2011AP2760-D



hearing, SCR 21.15(5) requires notification "in writing" to the

OLR and the clerk of the supreme court.                 Attorney Johns did not

satisfy this "in writing" requirement.

      ¶31     This was a violation of the most technical variety.

It is undisputed that, due to the telephone conversation between

Attorney Johns' lawyer and the OLR's deputy director on the day

of Attorney Johns' plea hearing, the OLR had actual knowledge of

the conviction from the day it was entered.                       Under the unique

facts    of    this    case,       a   completely     literal      enforcement        of

SCR 21.15(5) benefits no one and settles nothing.                        We therefore

dismiss this count.

      ¶32     We move now to the issue of whether Attorney Johns

violated SCR 20:8.4(b) through the misconduct leading to his

conviction for homicide by use of a vehicle with a prohibited

alcohol concentration.             We agree with the referee that on the

facts of this case, the answer is no.

      ¶33     In answering this question, it is helpful to bear in

mind the purpose of disciplinary actions.                    The purpose of the
disciplinary       system     is     not   punishment   or   atonement,        but    to

determine      whether       misconduct     as    defined    by    our     rules     has

occurred and to what extent that misconduct indicates unfitness

to practice law.             See In re Disciplinary Proceedings Against

Crandall, 2008 WI 112, ¶23, 314 Wis. 2d 33, 754 N.W.2d 501.                           No

one     disputes      that     the     facts     of   this   case        are   tragic:

Attorney Johns drove drunk and killed his brother——a senseless

loss of life.         This court will resist the impulse, however, to


                                            12
                                                                            No.    2011AP2760-D



assume that the unfortunate death of Attorney Johns' brother

necessarily reflects upon Attorney Johns' fitness as a lawyer.

      ¶34      Supreme      Court      Rule    20:8.4(b)         requires    us    to    answer

whether     Attorney        Johns'     criminal       act    "reflects       adversely"      on

his: (1) honesty, (2) trustworthiness, or (3) "fitness as a

lawyer    in     other      respects."           We       hold    that    Attorney       Johns'

criminal     act      does       not   reflect       adversely       on     the    first   two

factors,        his       honesty         or     trustworthiness.                 This      was

Attorney Johns' first drunk-driving related conviction.                                 He has

no   other     criminal         record.        He    has    been    truthful       about   his

actions.         He       has    never     disclaimed        responsibility          for   his

wrongdoing.          He did not flee the scene of the accident; the

record shows that a responding officer observed him trying to

administer mouth-to-mouth resuscitation to his fatally wounded

brother.       He gained nothing from his criminal action.                          Thus, the

record does not show that Attorney Johns' terrible decision to

drive    drunk       on    the    night    in       question      belies     a    deep-seated

tendency toward dishonest or untrustworthy actions.
      ¶35      The question becomes, then, whether Attorney Johns'

criminal act reflects adversely on his "fitness as a lawyer in

other respects"; i.e., whether the act bears on a character

trait which, like honesty and trustworthiness, is essential to

the practice of law.

      ¶36      The    ABA       Comment    [2]       to    SCR    20:8.4     provides      some

guidance as to what crimes reflect adversely on fitness as a

lawyer.      It states:


                                                13
                                                                             No.     2011AP2760-D


      Although a lawyer is personally answerable to the
      entire criminal law, a lawyer should be professionally
      answerable only for offenses that indicate [a] lack of
      those   characteristics  relevant  to   law  practice.
      Offenses involving violence, dishonesty, breach of
      trust, or serious interference with the administration
      of justice are in that category.         A pattern of
      repeated offenses, even ones of minor significance
      when considered separately, can indicate indifference
      to legal obligation.
      ¶37       We also note that in interpreting subsection (6) of

SCR   22.36       ("Reinstatement;            removal     of    conditions"),          we    have

interpreted the term "fit" with the phrase "to practice law" to

"imply      a    state       of    preparedness         to     render       competent       legal

services; that is, to be prepared to provide the measure of

expertise to ensure the attorney may be safely recommended to

the community as a person to be consulted by and to represent

others in legal matters."                 In re Medical Incapacity Proceedings

Against         Schlieve,         2010   WI    22,     ¶24,     323     Wis. 2d 654,          780

N.W.2d 516.            We     believe        these     same     concepts——preparedness,

competence,           expertise,         credibility——are              useful        here      in

determining           whether       Attorney       Johns'      criminal        act     reflects

adversely        on    his    "fitness        as   a   lawyer     in    other        respects."

SCR 20:8.4(b).

      ¶38       We    have    identified       certain        types    of    criminality       as

particularly relevant to a person's fitness as a lawyer.                                      For

example, we have held that a pattern of convictions "evinces a

serious lack of respect for the law and as such relate[s] to [a

lawyer's] 'fitness as a lawyer in other respects.'                                    Attorneys

are   officers         of    the     court    and      should    be     leaders       in    their
communities and should set a good example for others."                                      In re

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                                                                       No.     2011AP2760-D



Disciplinary Proceedings Against Brandt, 2009 WI 43, ¶42, 317

Wis. 2d 266, 766 N.W.2d 194 (discussing a lawyer's multiple OWI

convictions).            We also have held that certain criminal conduct

is so revealing of character defects, and so undermines public

confidence in the legal profession, that it necessarily reflects

adversely on an attorney's fitness as a lawyer.                              See Inglimo,

305 Wis. 2d 71, ¶¶49-55 (lawyer's marijuana usage with clients

showed the clients that their lawyer had "a disregard for the

law"    that    "reflect[ed]         adversely       not   only   on     the     lawyer's

fitness, but on the profession as a whole"); see also In re

Disciplinary Proceedings Against Penn, 201 Wis. 2d 405, 406, 548

N.W.2d 526 (1996) (district attorney's illegal drug usage with

individuals subject to prosecution by his office damaged the

"public trust in the legal system to which the people of his

county elected him").

       ¶39     Employing the above principles here, we conclude that

Attorney Johns' criminal act does not reflect adversely on his

"fitness       as    a     lawyer   in     other    respects."      SCR        20:8.4(b).
Attorney Johns' conviction is not part of a larger pattern of

criminal behavior that suggests indifference toward the law.                            He

has no other criminal history.                The record does not suggest that

Attorney        Johns'        conviction       has     adversely        affected       his

professional relationships with judges, fellow lawyers, clients,

or     other    members       of    the     legal    system.       Attorney        Johns'

conviction          does     not    call     into    question     his        ability    to

competently and vigorously represent clients; we have no reason
to doubt the referee's finding that Attorney Johns is "a highly
                                             15
                                                                            No.     2011AP2760-D



regarded and contributing member of his community and of the

legal    profession."            Nor,     we    believe,       should       Attorney         Johns'

criminal act diminish public confidence in the legal profession.

This    case    is    far      different       from    those    in     which       an    attorney

abused his or her professional status as a lawyer in committing

a criminal act.           Attorney Johns violated no practice norms.                                He

harmed no clients.             He did not benefit from his misconduct.                              He

has been arrested, convicted, sentenced, jailed, and supervised

on probation.         He will forever have a heavy conscience regarding

this incident.

       ¶40     Considering all of the above, we do not believe that

Attorney       Johns'     isolated      criminal        act,    even     with      its       tragic

consequences, denotes a deficiency in honesty, trustworthiness,

or other character traits that are essential to the practice of

law.

       ¶41     As noted earlier, the OLR cites a variety of out-of-

state    cases       in   an    attempt    to    convince        the    court       to       find    a

violation of SCR 20:8.4(b).                     The OLR waited until its reply
brief    to    first      identify      the     case    that    it     maintains         is    most

relevant to this case:                  In re Hoare, 155 F.3d 937 (8th Cir.

1998).       The facts of Hoare are as follows.                        One early morning,

Attorney      Hoare,      drunk,      drove     his    car     the   wrong        way    onto       an

interstate       highway        in    Illinois         and     collided        with      another

vehicle,        causing        that      driver's        death.              Id.        at     938.

Attorney Hoare was ultimately convicted of aggravated reckless

homicide.        Id. at 939.            A series of professional disciplinary
actions       against     Attorney      Hoare        followed.         In   an     unpublished
                                                16
                                                                           No.     2011AP2760-D



decision that is not available on Westlaw or Lexis and has not

been    provided     to     us    by    the     OLR,    the   Missouri      Supreme     Court

issued an order disbarring Attorney Hoare from the practice of

law in Missouri.            Id. at 939, citing In re Michael Hoare, No.

78870 (Mo. S. Ct. Jul. 16, 1996).                      In an unpublished order that

is also not available on Westlaw or Lexis and has not been

provided to us by the OLR, the United States District Court for

the Eastern District of Missouri imposed the same discipline as

that imposed by the Missouri Supreme Court:                         disbarment.        Id. at

940, citing In the Matter of Michael J. Hoare, No. 96-MC-187

(E.D.    Mo.    Mar.      11,     1997)       (en    banc).         The    Eighth     Circuit

affirmed, noting that federal courts are "obliged to accord a

high level of deference to state court disbarment proceedings,"

and that         "we cannot say that the district court abused its

discretion      in   concluding           that       the   reciprocal       discipline      of

disbarment would not result in grave injustice."                           Id. at 940-42.

       ¶42     We do not find Hoare particularly enlightening.                             The

Eighth    Circuit      in       Hoare     was       operating   under       a    constrained
standard of review of a 1996 Missouri Supreme Court order that

is unavailable to us and that relied upon a Missouri Supreme

Court    Rule     that      the    OLR        neither      quotes    nor     substantively

discusses.       In the instant case, we enjoy a de novo standard of

review over the legal issues presented, and we have the benefit

of a fully developed record.                    For the reasons set forth above,

we hold that on the particular facts of record, Attorney Johns'

criminal       act   does        not    reflect        adversely      on     his     honesty,


                                                17
                                                                            No.     2011AP2760-D



trustworthiness,          or   fitness      as    a     lawyer      in     other     respects,

despite the act's tragic consequences.

       ¶43   We move now to the third issue raised in the parties'

briefs:      whether the referee erred in admitting 21 letters from

juveniles in the Lincoln Hills School (a juvenile correctional

institution)        expressing     appreciation             to    Attorney        Johns    for   a

talk   he    gave    them      about   his       life    experiences.              Here     is   a

representative example of one of the letters:

       Dear Mr. Johns,

            I would like to thank you for taking the time out
       of your day to come and speak to us.      I could see
       myself in you.    I did get some things out of your
       story. One of them . . . is don't drink, and another
       is don't drink and drive under [any] circumstances. I
       also got that change is possible and it do[es] exist.
       I admire and respect you. Thank you again.
       ¶44   In     its    brief-in-chief,            the    OLR        argued     that     these

letters      constituted         inadmissible           hearsay.           Attorney        Johns

disputed this assertion in his response brief.                                 Attorney Johns

further argued that, even if these letters should not have been

admitted,     their       admission        into    evidence         was    harmless        error

because the record contains abundant other uncontested evidence

of his good character.

       ¶45   The OLR ignores the topic in its reply brief.                                Neither

party mentioned the issue at oral argument.                              We take this lack

of   reply    by    the    OLR   as    a    concession           that    the     letters     were

admissible.        See State ex rel. Blank v. Gramling, 219 Wis. 196,

199, 262 N.W. 614 (1935).



                                             18
                                                                    No.    2011AP2760-D



     ¶46    For the reasons stated above, we accept the referee's

conclusion that Attorney Johns' conduct resulting in his 2004

conviction     does       not   reflect          adversely     on    his     honesty,

trustworthiness, or fitness as a lawyer in other respects so as

to   violate      SCR    20:8.4(b).         We    depart     from    the    referee's

conclusion that Attorney Johns'                  committed a    failure-to-report

violation under SCR 21.15(5); we conclude that Attorney Johns'

violation    of    SCR   21.15(5)     was    too    technical       to    justify   the

imposition of legal consequences.                  Accordingly, we dismiss the

complaint.

     ¶47    IT IS ORDERED that the disciplinary complaint filed

against Daniel W. Johns, Jr., is dismissed.                  No costs.

     ¶48    ANN WALSH BRADLEY, J., did not participate.




                                        19
                                                                  No.    2011AP2760-D.ssa




      ¶49    SHIRLEY S. ABRAHAMSON, C.J.                   (dissenting).         The OLR

charged     Attorney     Johns   with       two   violations      of     the    Rules   of

Professional Conduct for Attorneys.                   I conclude that the two

violations were proved, but I would not impose any discipline.

      ¶50    Attorney Johns agrees (as he must) that he violated

the Rules by failing to notify the clerk of the supreme court

and OLR in writing of his felony conviction.                            Attorney Johns

disputes whether his conviction of vehicular homicide violated

the Rules.

      ¶51    The    referee      agreed      with     Attorney      Johns       that    he

violated only one provision of the Rules of Professional Conduct

for Attorneys, namely failing to notify the clerk of the supreme

court and the OLR in writing of his felony conviction.1

      ¶52    The per curiam opinion concludes that Attorney Johns'

conduct does not violate the Rules in either respect.

      ¶53    I disagree with the court's disposition of the present

case and address the two charges in parts A and B of this
dissent.

      ¶54    Because this case, along with two other pending cases

and   an    open   rules    petition        hearing   and    open       rules   petition

conference, raise important concerns about the present lawyer

regulatory system, I write stating the requests previously made

for   the   court   to     initiate     a    study    of    the   lawyer       regulatory

      1
       The referee concluded that Johns did not violate the Rules
by his felony conviction of vehicular homicide of his brother
because the conviction does not reflect on Attorney Johns'
honesty, trustworthiness, or fitness as a lawyer.

                                             1
                                                           No.   2011AP2760-D.ssa


system.      The    lawyer     regulatory    system      now    in     effect   was

instituted about 15 years ago.              It is time to examine it to

determine whether revisions are needed.                  The director of the

Office of Lawyer Regulation agrees.                I discuss this issue in

Part C of this dissent.

                                      A

      ¶55   With regard to the notification violation, Attorney

Johns did not notify the OLR and the clerk of the Supreme Court

of his felony conviction in writing, as SCR 21.15(5) requires.

He did speak with a named employee at OLR.                 OLR does not deny

that this oral communication occurred.              Attorney Johns does not

claim he spoke with or wrote the clerk of the Supreme Court

about his conviction.

      ¶56   The    rule   is   straightforward:     It    requires      a   written

notice to two offices.         A writing constitutes official notice to

the   OLR   and    the    court;   writing    is    key    to    the     reporting

requirement and attorney discipline.               A written communication

avoids evidentiary proceedings to determine who said what to
whom and when.

      ¶57   Furthermore, the rule requires communication to both

the OLR and the clerk's office.           Attorney Johns failed to notify

the clerk's office in any way.            No one asserts he complied with

notification to the clerk's office.

      ¶58   The per curiam opinion characterizes the present case

as a technical violation.            I do not know what a "technical

violation" means.         Attorney Johns' notification to OLR was not



                                      2
                                                            No.       2011AP2760-D.ssa


in writing and no notification was made to the clerk of the

supreme court.

    ¶59     The    court's   conclusion      that    Attorney        Johns   did   not

violate SCR 21.15(5) is clearly contrary to the stipulated facts

and the plain, unambiguous text of the Rules.

    ¶60     The court has discretion whether to impose discipline.

SCR 21.16.    In light of the circumstances of the case, including

Attorney Johns' stellar record for the last decade, I would not

impose any discipline for this violation.

                                       B

    ¶61     The felony conviction presents a more difficult issue.

The commission of a criminal act by a Wisconsin-licensed lawyer

does not in and of itself automatically constitute professional

misconduct.       The facts and circumstances of an offense must be

considered    to   determine   whether      it   reflects       on    the    lawyer's

honesty,     trustworthiness,     or       fitness    as    a     lawyer.          SCR

20:8.4(b).

    ¶62     This felony drunk driving conviction was apparently
Attorney Johns' only drunk driving offense before or after the

homicide.     Nothing in the record before us indicates he has an

alcohol-related     problem.     The   district       attorney's         office    had

discretion whether to prosecute Attorney Johns.                      It prosecuted.

The trial court had discretion in sentencing Attorney Johns for

the homicide.      It imposed jail time and probation.




                                       3
                                                                       No.   2011AP2760-D.ssa


       ¶63       As the per curiam opinion explains, drunk driving has

been       viewed    differently        by    different          courts       in    attorney

discipline cases.2

       ¶64       Drunk   driving   is    a    major       public       safety      issue    in

Wisconsin and across the country.                        According to the National

Highway Traffic Safety Administration, in 2012 an average of one

alcohol-impaired driving fatality occurred every 51 minutes.3                               In

2012,      10,322    people   were      killed      in    alcohol-impaired           driving

crashes.4        All drivers are——or should be held to be——aware of the

dangers of drunk driving.             That drunk driving may be prosecuted

as a crime is also common knowledge.

       ¶65       Attorney Johns was engaged in an evening of drinking

with his family.           His blood alcohol level tested way over the

legal limit.         He pled guilty to one count of homicide by use of

a vehicle with a prohibited alcohol concentration.                                 The one-

vehicle      accident     resulting      in       the    death    of    Attorney      Johns'

passenger/brother was a tragedy for the entire family.                                     The

tragedy did not end that night.                   The tragic aftermath includes a




       2
       See also Alexandra Sorota & Shelley Lambert, Driving on
the Wrong Side of the Road: How Lawyers are Sanctioned for
Vehicular Homicide in New York and the District of Columbia, 15
Geo. J. Legal Ethics 865 (2002); Rachna K. Dhanda, When
Attorneys Become Convicted Felons: The Question of Discipline by
the Bar, 8 Geo. J. Legal Ethics 723 (1995).
       3
       National Highway Traffic Safety Administration, U.S.
Department of Transportation, DOT HS 811 870, Traffic Safety
Facts:         2012     Data,     available    at     http://www-
nrd.nhtsa.dot.gov/Pubs/811870.pdf (last visited March 24, 2014).
       4
           Id.

                                              4
                                                                No.   2011AP2760-D.ssa


criminal prosecution, a felony conviction, jail time, probation,

and this disciplinary action.

    ¶66    This       case   has     to   be     considered,    however,       in   the

context    of    the    scourge      of     drunk    driving    in    our     society.

Although   the    totality      of    the       circumstances   of    the     isolated

homicide in the instant case presents a very close discipline

case——and my sympathies are with Attorney Johns and his family——

I would hold that the felony conviction constituted a violation

of the Rules.

    ¶67    I would not, however, impose any discipline for this

violation.      The     court      has      discretion     whether       to     impose

discipline.      SCR 21.16.          In light of the circumstances of the

case,   including      Attorney      Johns'      stellar   record     for   the     last

decade, discipline is not warranted.

                                            C

    ¶68    This case, along with the two Osicka cases,5 the Kratz6

case, and rule petitions recently filed7 and hearings on filed




    5
       OLR v. Osicka, 2014 WI 33, ___ Wis. 2d ___, ___
N.W.2d ___, and OLR v. Osicka, 2014 WI 34, ___ Wis. 2d ___, ___
N.W.2d ___, mandated of even date.    Although Justice Prosser
joined in prior cases disciplining Attorney Osicka, Justice
Prosser dissents, asserting that OLR is "piling up legal costs
that it expects Osicka to pay. . . . These prosecutions raise
questions about how OLR uses its limited resources to protect
the public interest——questions about its priorities.    Because
the answers to questions of this sort are seldom addressed, I
feel compelled to respectfully dissent."   Osicka, 2014 WI 33,
¶___ (Prosser, J., dissenting).
    6
       OLR v. Kratz, 2014 WI 31, ___ Wis. 2d ___, ___ N.W.2d ___,
mandated of even date.
                                            5
                                                                   No.    2011AP2760-D.ssa


rules petitions involving the OLR, raises broader issues than

those posed by these and other individual cases.

      ¶69    For    example,   the      very    prosecution         of    this       case   10

years after the incident seems to have troubled the referee and

is   troubling      the   court,   as    is     the    wisdom      of     OLR's      appeal.

Delays in initiating and completing discipline cases are also

evident in Osicka and Kratz.             Other issues raised include OLR's

discretion     in    charging,      dismissing         charges,          and   diversion;

whether and what consideration is given in lawyer discipline to

OLR's     scarce    resources;     the   extent       to    which       the    OLR    should

consider    mercy,    forgiveness,        and    the    wishes      of     the    victims;

whether respondent lawyers should be able to appear before the

Preliminary Review Committee; and whether the Preliminary Review

Committee should be disbanded inasmuch as apparently over 90% of

the OLR's recommendations are accepted.

      ¶70    The    Kratz   case     raised      the       issue    of     the    role      of

partisan politics and media publicity in discipline proceedings,

as Justice Prosser's dissent points out.                      Members of the Court
have also raised the question of the wisdom of changing the

rules to allow plea bargaining.                  These are only some of the

significant and troubling issues illustrated in these cases and



      7
       See OLR's Board of Administrative Oversight and State Bar
petition (Rule Petition 13-04) to amend the rules relating to
referees in the lawyer regulation system; OLR's Board of
Administrative Oversight and State Bar petition (Rule Petition
13-06)   relating   to  stipulations   in   lawyer  disciplinary
proceedings; and OLR's Board of Administrative Oversight
petition (Rule Petition 13-12) relating to public notice of
formal investigations.

                                          6
                                                                             No.       2011AP2760-D.ssa


raised      in       rule    petitions       and        the    hearings           on    recent     rule

petitions.

       ¶71       On October 25, 2013, Keith Sellen appeared advocating

a rule petition regarding lawyer discipline.                                 I suggested to him

that       an    impartial,        objective            review    of        OLR    practices        and

procedures should be conducted.8                              Fifteen years have elapsed

since the OLR system was instituted.                               Several anomalies and

proposed amendments have been brought to the court's attention.

I   believe          it   is    time   for      a       review     rather         than      piecemeal

adjustments at this time.                  Keith Sellen, director of the OLR,

agreed      with      the      proposal   for       a    review.            Justices        Ann   Walsh

Bradley,        N.    Patrick      Crooks,      and       David        T.    Prosser        expressed

interest in and support for such a proposal at the October 2013

open rules petition conference.

       ¶72       Several pending rule petitions requesting changes in

OLR's      practices         and   procedures           were     the    result         of   a     review

committee that              the chair of the OLR Board of Administrative

Oversight created at my suggestion.




       8
       For a provocative, different view of state lawyer
discipline   systems   (which   are  now   modeled   on   criminal
prosecutions), see Jenifer Gerarda Brown & Liana G.T. Wolf, The
Paradox and Promise of Restorative Attorney Discipline, 12
Nevada L. J. 253 (2012). The authors suggest new therapeutic
approaches including diversionary programs, deliberation and
decision making by a diverse group of stakeholders, increased
victim and public participation, and discussions that focus on
repairing the damage caused by the offending attorney to build
trust   between   attorneys   and   their   clients,   to   foster
professional conduct, to prevent ethical misconduct, to improve
the morale of practicing lawyers, and to protect the public.

                                                    7
                                                                       No.    2011AP2760-D.ssa


      ¶73   Instead       of    examining       and    adopting         these        proposals

piecemeal, I advocated dealing with the subject matter of these

rule petitions as well as other issues relating to OLR by an

objective review of all OLR practices and procedures.                                 A review

by persons knowledgeable in and working in other state lawyer

discipline systems might be a good first step.                               Other justices

proposed different tacks, including appointing a committee of

diverse stakeholders to determine the nature and course of the

review.     I was (and am) open to taking a different or broader

approach than I originally explored.

      ¶74   The   court        has   not   resolved         a    proposal       for    such   a

review of the OLR disciplinary system.                           Some members of the

court appeared to take the view that any such proposal was not

germane to the subject of the petitions; that any such proposal

was   not   itself    a    rules      petition;       and       that   consequently        any

proposal    could    not       be    discussed    at     an      open        rules    petition

conference     without         the     court     first          authorizing          an   open

discussion in closed conference.
      ¶75   I intend to continue to seek an open conference in

which we can discuss instituting an impartial, objective review

of OLR practices and procedures.                  Such a review is germane to

all the pending rules petitions.                In any event, I can and shall,

if need be, draft a proposal in rules petition format if that's

what it takes.

      ¶76   This matter should be discussed by the court in open

conference, not behind closed doors.                        Lawyer discipline is of



                                            8
                                                        No.   2011AP2760-D.ssa


great importance to the court, the lawyers in the state, and the

public.

                                * * * *

    ¶77   For   the   reasons   set   forth,   I   do   not   join   the   per

curiam opinion, and I write to urge an impartial, objective

review of our lawyer discipline system.




                                      9
    No.   2011AP2760-D.ssa




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