                                                              2017 WI 82


                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP2088-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against David V. Moss, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        David V. Moss,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST MOSS

OPINION FILED:          August 2, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                       2017 WI 82
                                                               NOTICE
                                                 This opinion is subject to further
                                                 editing and modification.   The final
                                                 version will appear in the bound
                                                 volume of the official reports.
No.    2013AP2088-D


STATE OF WISCONSIN                           :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
           Complainant,
                                                                AUG 2, 2017
      v.
                                                                  Diane M. Fremgen
                                                               Clerk of Supreme Court
David V. Moss,

           Respondent.




      ATTORNEY reinstatement proceeding.             Reinstatement granted

with conditions.



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

James C. Boll recommending that the court reinstate the license

of David V. Moss to practice law in Wisconsin.                     Upon careful

review of the matter, we agree that Attorney Moss's license

should be reinstated, with the conditions described herein.                        We

further agree with the referee that Attorney Moss should be

required to pay the full costs of the reinstatement proceeding,
which are $3,321.79 as of May 22, 2017.
                                                                  No.    2013AP2088-D



       ¶2    Attorney       Moss    was    admitted     to   practice       law    in

Wisconsin in 2009 and practiced in Galesville.                      Attorney Moss

currently lives in the state of Washington.                     In 2014, Attorney

Moss's license to practice law in Wisconsin was suspended for a

period of two years for 35 counts of misconduct, which involved

eight separate client matters.                  In re Disciplinary Proceedings

Against     Moss,    2014    WI    95,    357    Wis. 2d 324,    850    N.W.2d 934.

Attorney Moss's misconduct included repeatedly taking fees from

clients and failing to perform the work for which he was hired;

failing     to    communicate      with   clients    regarding    the    status    of

their matters; and failing to return fees and client files upon

request.         Attorney Moss was later reciprocally disciplined by

the United States Patent and Trademark Office.

       ¶3    In July 2016, Attorney Moss filed a petition seeking

the reinstatement of his Wisconsin law license.                         In January

2017, the Office of Lawyer Regulation (OLR) filed a response

stating it did not oppose the reinstatement petition.                      A public

hearing was held on April 3, 2017.                  Attorney Moss called three
witnesses at the hearing, two attorneys in Washington state and

a longtime friend.          All three testified they would refer clients

to Attorney Moss and believe he would be a good lawyer.                           One

former client of Attorney Moss testified at the hearing that he

did not believe Attorney Moss should be reinstated to practice

law.    However, the former client said he had not spoken with or

observed Attorney Moss for over three years.

       ¶4    On May 2, 2017, the referee issued his report and
recommendation recommending that Attorney Moss's Wisconsin law
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license be reinstated.         The referee commented that during the

reinstatement hearing, Attorney Moss testified with sincerity

regarding his previous disciplinary issues, took responsibility

for his actions, and apologized on the record to his clients.

The   referee   noted   that   Attorney    Moss   testified   he    had    been

diagnosed with a bi-polar disorder in March of 2014 and that he

controls this condition under the supervision of a doctor with

prescribed   medication    and   regular   sessions   with    a    counselor.

The referee said that while he understands the frustration of

the former client who opposed Attorney Moss's reinstatement, all

available evidence in the record indicates that Attorney Moss

has changed from the individual the former client encountered

and the record demonstrates that Attorney Moss, with the help of

medication and under a doctor's supervision, now has the moral

character to practice law.

      ¶5   The referee concluded that Attorney Moss satisfied the

burden of proof and requirements for reinstatement set forth in

Supreme Court Rule (SCR) 22.31.            The referee recommends that
Attorney Moss's Wisconsin law license be reinstated with the

following conditions:

      1)   Attorney Moss continue in counseling                 with   a
           therapist who treats bi-polar conditions.

      2)   Attorney Moss continue in treatment with a
           physician who prescribes medication for bi-polar
           conditions.

      3)   Attorney Moss cooperate by taking the medication
           prescribed for his bi-polar condition.

      4)   Attorney Moss not consume any illegal drugs.

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                                                                      No.    2013AP2088-D


       5)   For   a  period   of  two   (2)  years  following
            reinstatement, Attorney Moss provide the OLR with
            quarterly written reports from his therapist and
            his prescribing physician that he is cooperating
            with therapy and with taking the prescribed
            medication for his bi-polar condition.
       ¶6   The referee also recommends that Attorney Moss pay the

full costs of the reinstatement proceeding.                        No appeal has been

filed from the referee's report and recommendation.

       ¶7   Supreme Court Rule 22.31(1) provides the standards to

be met for reinstatement.              The petitioner must show by clear,
satisfactory, and convincing evidence that he or she has the

moral character to practice law, that his or her resumption of

the    practice      of   law     will           not    be   detrimental       to    the

administration of justice or subversive to the public interest,

and that he or she has complied with SCR 22.26 and the terms of

the    order   of     suspension.            In        addition,     SCR    22.31(1)(c)

incorporates the statements that a petition for reinstatement

must   contain      pursuant    to     SCR       22.29(4)(a)-(4m).           Thus,   the

petitioning       attorney      must     demonstrate          that     the     required

representations in the reinstatement petition are substantiated.

       ¶8   When we review a referee's report and recommendation,

we will adopt the referee's findings of fact unless they are

clearly erroneous.           Conclusions of law are reviewed de novo.

See In re Disciplinary Proceedings Against Eisenberg, 2004 WI

14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                      We concluded that the

referee's findings support a determination that Attorney Moss

has met his burden to establish by clear, satisfactory, and




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                                                                                 No.       2013AP2088-D



convincing        evidence      that      he    has       met     all      of        the    standards

required for reinstatement.

       ¶9     The       referee    found       that       during          the    period       of     his

suspension, Attorney Moss has not practiced law in Wisconsin or

any other jurisdiction.                 The referee noted that Attorney Moss's

suspension required him to make restitution and to pay the costs

of    the    disciplinary         proceeding          and    he          has    satisfied          those

conditions.         The referee found that Attorney Moss has maintained

competence        and    learning       in     the    law       by       attending         identified

educational       activities.            The    referee          specifically              found    that

Attorney Moss's conduct since the suspension has been exemplary

and    above      reproach.             The    referee           noted         that    during        his

suspension,        Attorney       Moss    has        pursued         a    certification            as   a

certified professional horticulturist and has also spent time

assisting a friend growing vegetables for a local food bank.

The referee found that Attorney Moss has a proper understanding

of    and    attitude      toward       the    standards          that         are    imposed       upon

members      of   the     bar     and    will       act     in    conformity               with    those
standards.

       ¶10    The referee noted that Attorney Moss has represented

that if his license to practice law is reinstated, he would

potentially seek employment in Seattle, Washington to practice

immigration law.           One of the attorneys who testified on Attorney

Moss's behalf at the reinstatement hearing said he would offer

Attorney Moss such employment.                       In addition, the referee noted

that    Attorney        Moss    testified       he     may       return         to    Wisconsin         to


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                                                            No.     2013AP2088-D



practice law in Green Bay in the areas of water law, permitting,

land use, immigration, and criminal law.

      ¶11   This court agrees with the referee that Attorney Moss

has met his burden of proof with respect to all elements needed

to   justify   his   reinstatement.       We   further   agree    that   it   is

appropriate to impose the conditions on Attorney Moss's practice

of law recommended by the referee.             Finally, we agree with the

referee's recommendation that Attorney Moss should pay the full

costs of the proceeding.

      ¶12   IT IS ORDERED that the license of David V. Moss to

practice law in Wisconsin is reinstated effective the date of

this order.

      ¶13   IT IS FURTHER ORDERED that, as a condition of the

reinstatement of his license to practice law in Wisconsin, David

V. Moss shall, until further order of the court, comply with the

following conditions:

      1)    Attorney Moss continue in counseling                  with   a
            therapist who treats bi-polar conditions.

      2)    Attorney Moss continue in treatment with a
            physician who prescribes medication for bi-polar
            conditions.

      3)    Attorney Moss cooperate by taking the medication
            prescribed for his bi-polar condition.

      4)    Attorney Moss not consume any illegal drugs.

      5)    For   a  period  of   two  (2)   years  following
            reinstatement, Attorney Moss provide the Office
            of Lawyer Regulation with quarterly written
            reports from his therapist and his prescribing
            physician that he is cooperating with therapy and
            with taking the prescribed medication for his bi-
            polar condition.
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                                                            No.    2013AP2088-D



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

of this order, David V. Moss shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $3,321.79 as

of May 22, 2017.

    ¶15      IT IS FURTHER ORDERED that compliance with all of the

terms   of   this   order   remains   a   condition   of   David   V.   Moss's

license to practice law in Wisconsin.




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    No.   2013AP2088-D




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