                                                             2019 WI 105

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:               2011AP48-D & 2015AP275-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against James M. Schoenecker, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        James M. Schoenecker,
                                  Respondent-Appellant.

                          DISCIPLINARY PROCEEDINGS AGAINST SCHOENECKER

OPINION FILED:          December 13, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                    2019 WI 105
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.     2011AP48-D, 2015AP275-D


STATE OF WISCONSIN                         :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against James M. Schoenecker, Attorney at Law:

Office of Lawyer Regulation,                                      FILED
           Complainant-Respondent,                           DEC 13, 2019
      v.                                                        Sheila T. Reiff
                                                             Clerk of Supreme Court
James M. Schoenecker,

           Respondent-Appellant.




      ATTORNEY Reinstatement proceeding.         Reinstatement granted.



      ¶1   PER CURIAM.       We review the report and recommendation
of    Referee   James   J.   Winiarski   recommending        that     James      M.

Schoenecker's     license     to   practice     law     in     Wisconsin         be

reinstated.     After careful review of the matter, we agree that

Attorney Schoenecker's license should be reinstated with certain

conditions recommended by the referee.            We further agree with

the referee that, consistent with our general practice, Attorney

Schoenecker should be required to pay the full costs of this

reinstatement proceeding, which are $14,754.78 as of October 7,
2019.
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       ¶2   Attorney Schoenecker was admitted to practice law in

Wisconsin in 2004.           He is a graduate of Boston College and

Columbia University Law School.                 He practiced briefly in New

York, then practiced at Quarles and Brady in Milwaukee for a

time, and finally practiced at the Clair Law Offices, a small

law firm in Delevan.

       ¶3   In 2011, Attorney Schoenecker's license was suspended

for three years.          See In re Disciplinary Proceedings Against

Schoenecker (Schoenecker I), 2011 WI 76, 336 Wis. 2d 253, 804

N.W.2d 686.     Much of the misconduct in that case arose out of

Attorney    Schoenecker's        personal      and    professional          relationship

with his former fiancée.          In late 2007, Attorney Schoenecker and

his fiancée     opened a joint checking account and the                           fiancée

obtained    a   home   equity     line     of     credit      and    loaned      Attorney

Schoenecker $48,500.        Attorney Schoenecker executed a promissory

note whereby he promised to repay the loan with interest.                            Two

days later, the fiancée learned Attorney Schoenecker had made

cash    withdrawals       from    her     checking      account        at    a    casino,
resulting in a $1,500 negative balance in her account.                                She

closed the joint checking account and ended her engagement to

Attorney Schoenecker.

       ¶4   Attorney Schoenecker repaid part of the loan balance.

At   some   point   the    former       fiancée      filed    a     collection     action

against him.        The parties reached a settlement, and Attorney

Schoenecker paid the former fiancée over $32,000 as part of a

full resolution of their financial issues.


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      ¶5      In December 2008, Attorney Schoenecker used the former

fiancée's     personal   information       to   enter      her   business   account

without her permission and made checks payable to himself.                       As a

result of these actions, he was charged in two separate criminal

proceedings, one in Walworth County where he pled guilty to one

felony count of identity theft and was placed on two years of

probation and ordered to make restitution and pay court costs,

and one in Waukesha County where he pled guilty to a misdemeanor

charge of Theft-Moveable Property.              The Waukesha County circuit

court imposed and stayed a four-month jail sentence and placed

Attorney Schoenecker on probation for one year.                      In addition,

Attorney      Schoenecker   was   required      to   pay    restitution     to    the

former fiancée and pay court costs.

      ¶6      In 2008, Attorney Schoenecker became an associate at

the Clair Law Offices.         He told the law firm he was representing

his former fiancée, so she was considered a firm client.                           He

sent invoices to the former fiancée in the fall of 2008 showing

that she owed over $13,000.         A substantial number of the entries
on the invoices were fraudulent.

      ¶7      Attorney Schoenecker also set up his own separate law

firm on the side while he was working as an associate at the

Clair Law Offices.       He did not inform the law firm of this fact.

In addition to the incidents involving the former fiancée and

the   Clair    Law   Office,   Attorney     Schoenecker's         2011   suspension

also arose out of his making fraudulent statements in his own

personal bankruptcy proceeding.


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       ¶8    In 2016, Attorney Schoenecker received an additional

one-year license suspension.              See In re Disciplinary Proceedings

Against      Schoenecker          (Schoenecker           II),    2016     WI      27,        368

Wis. 2d 57, 878 N.W.2d 163.                 The misconduct at issue in that

case    arose    out     of    Attorney     Schoenecker's          involvement          in    a

business partnership he entered into in 2012 with two other men.

The men established a limited liability company.                            One man gave

Attorney        Schoenecker          $25,000       in     cash      as     his     capital

contribution, and the other man contributed $20,000.                           Instead of

immediately depositing the $25,000 capital contribution into a

business     account,       Attorney     Schoenecker        deposited       the   bulk        of

that money into his own personal checking account.                          He also used

company      funds     to     pay    personal       credit       card     bills    without

preapproval       from      his     partners,      and    he     withdrew      funds     from

company accounts in order to gamble at Potawatomi Casino in

Milwaukee.

       ¶9    Attorney         Schoenecker       filed     his     first     petition         for

reinstatement of his law license in early 2017.                           In 2018, this
court    denied      the    petition,     agreeing         with    the     referee       that

Attorney Schoenecker had failed to meet his burden of proof to

establish the requirements of reinstatement at that time.                               In re

Disciplinary Proceedings Against Schoenecker, 2018 WI 58, 381

Wis. 2d 644, 912 N.W.2d 847.                   This court stated that Attorney

Schoenecker could again file a petition for reinstatement six

months after the date of its decision.

       ¶10   In November 2018, Attorney Schoenecker filed a second
petition for reinstatement.               A public hearing was held before
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the   referee        on     June      18   and    19,     2019.        Numerous      witnesses

testified      at     the      hearing       in   favor    of    Attorney      Schoenecker's

reinstatement petition.

      ¶11      One    of       the     witnesses        who     testified       on     Attorney

Schoenecker's behalf was James Harrison, a clinical substance

abuse counselor, licensed professional counselor, international

certified       gambling            addiction         counselor,       and     board-approved

clinical       consultant.             Mr.    Harrison        testified      that    he   began

seeing Attorney Schoenecker in April of 2015.                            Mr. Harrison said

Attorney Schoenecker has gone above and beyond what many people

do in outpatient treatment and has voluntarily continued his

counseling sessions for over four years, whereas Mr. Harrison

normally sees clients for only two to four months in counseling

sessions.        Mr. Harrison testified that Attorney Schoenecker's

willingness to continue the counseling sessions was indicative

of how seriously he takes his situation.                              As a result of this

dedication, Mr. Harrison opined that Attorney Schoenecker's risk

level    to     return         to    his     previous     behavior       and     actions    has
diminished.

      ¶12      Mr. Harrison testified that Attorney Schoenecker has

come to the conclusion that gambling can no longer be part of

his     life    and       he    has    been       bet-free       for    over    four      years.

Mr. Harrison said:

      It should be noted that Attorney Schoenecker has a
      disease.   A disease of gambling addition. It is a
      disease that often results in good people making
      inappropriate decisions and poor choices.



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                                                          No.    2011AP48-D, 2015AP275-D


      Not to be used as an excuse by any means for his
      behavior, but certainly a contributing factor to what
      he did.    It is also a disease that can be brought
      under control if treated immediately and continue to
      be treated.    Attorney Schoenecker is definitely an
      example of this.

      But with the continued support of his family, friends,
      co-workers, and counseling, and by continuing with his
      counseling sessions, Attorney Schoenecker can and will
      make a positive difference in his life as well as the
      lives of others.

      Therefore, if he follows his treatment plan, continues
      to make the changes that are necessary and needed in
      his life, continues with his counseling sessions;
      develops, utilizes, and maintains a positive support
      system and network and acts and lives responsibly,
      Attorney Schoenecker can and will make sure that he
      will not put himself or others in this predicament
      again.
      ¶13    While Mr. Harrison agreed that there is no guarantee

Attorney Schoenecker would not relapse, he stated the chances of

relapse     were    very    minimal   so       long   as        Attorney    Schoenecker

continues what he has been doing for the past four years.                            When

asked if had any opinion regarding whether anything outside of

the   gambling      addiction    might     explain         Attorney        Schoenecker's
conduct, Mr. Harrison said that lying and misconceptions were

part of a gambling addiction.                  He said, "it is a body rush.

They will do anything they can to obtain that, whether it's

lying, whether it's stealing, whether it's embezzling.                            So this

is part of the addiction."

      ¶14    Other       witnesses,   including            friends         of     Attorney

Schoenecker, his sister, and father also testified that Attorney

Schoenecker        has   been   humbled        by   his     downfall,       has    become



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                                                         No.     2011AP48-D, 2015AP275-D



compassionate toward others, and has gone out of his way to help

other people.

      ¶15    Attorney       Schoenecker         testified       that      if     he        were

reinstated he wanted to help others and might be interested in

working as a public defender given what he has learned going

through his own criminal proceedings.

      ¶16    The parties stipulated to the admission into evidence

of the transcript from the first reinstatement hearing, which

was   held    in    July    2017.        The     transcript      from     that    hearing

included testimony from Attorney Schoenecker's former fiancée,

one of Attorney Schoenecker's business partners, and an attorney

from the Clair Law Offices.                    All three of those individuals

testified     in    the    first    reinstatement        hearing       that,     in    their

opinion, Attorney Schoenecker does not have the moral character

to have his law license reinstated.

      ¶17    The referee in          this reinstatement proceeding issued

his report and recommendation on September 18, 2019.                              Referee

Winiarski     echoed      the    opinion    of    the    referee       from    the     first
reinstatement        proceeding      that        "this    is     a     most    difficult

reinstatement case."             The referee noted that the sheer number

and nature of Attorney Schoenecker's moral lapses, which led to

the two disciplinary proceedings, indicated that there was more

than a simple gambling addiction problem involved.                        However, the

referee     noted    that    Attorney      Schoenecker         fully    admits        to    his

misconduct,        does    not   blame     others       for    the     misconduct,         and

expresses a degree of disbelief that he committed the acts of
misconduct.         The referee opined that, "such reflection on his
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part    is     certainly      an     indication             that    he       has     gone     through

considerable self-examination of his misconduct."                                        The referee

noted     that        according          to        many     of     Attorney          Schoenecker's

witnesses, he has expressed genuine remorse for his actions; he

has     made    restitution         to        his        victims;      and        there    was   also

testimony regarding the spiritual reflections and actions he has

taken since the time of his misconduct.

       ¶18     The referee concluded that Attorney Schoenecker, "as a

result of his misconduct, experienced tumultuous changes in his

life and he is not likely to ever repeat such misconduct, given

the consequences."

       ¶19     The referee noted that this court has indicated that

the primary focus of a reinstatement hearing should be on the

petitioner's conduct between the start of the suspension and the

reinstatement.              See    In     re       Disciplinary           Proceedings         Against

Carroll,       2004    WI    19,    ¶16,           269    Wis. 2d 172,            675     N.W.2d 792.

Accordingly, the referee recommends that Attorney Schoenecker's

license to practice law in Wisconsin be reinstated.                                       The referee
further        recommends         that        as    a     condition          of     reinstatement,

Attorney Schoenecker be required to continue monthly counseling

sessions with either his current counselor or a counselor with

similar      credentials.           The        referee       recommends            the     counseling

should       address        not     only           Attorney        Schoenecker's             gambling

addiction, but also any other possible causes for his previous

misconduct.           The    referee           recommends          that      the     counselor     be

required to file semi-annual progress reports with the Office of
Lawyer Regulation (OLR) and that such counseling be required to
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                                                             No.       2011AP48-D, 2015AP275-D



continue      for     a     period        of    at       least     three       years    after

reinstatement.            Finally, the referee recommends that Attorney

Schoenecker be responsible for all costs of the reinstatement

proceeding.

      ¶20    No appeal has been filed from the referee's report and

recommendation.           Supreme Court Rule (SCR) 22.31(1) provides the

standard 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 of the public interest;

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

the suspension.           In addition to these requirements, SCR 22.29(4)

states related requirements that the petition for reinstatement

"shall      show."          All     of    these         additional       requirements       are

effectively incorporated into SCR 22.31(1).

      ¶21    This court will adopt a referee's findings of fact

unless   they       are    clearly       erroneous.          Conclusions        of    law   are
reviewed de novo.             See In re Disciplinary Proceedings Against

Jennings, 2009 WI 26, ¶22, 316 Wis. 2d 6, 762 N.W.2d 648.

      ¶22    After        careful    review        of    this    matter,       we   adopt   the

referee's findings of fact and conclusions of law and agree with

the referee that Attorney Schoenecker has demonstrated he has

met the burden of proof imposed upon him by our Supreme Court

Rules.      We agree with the referee that, in order to ensure, to

the extent possible, that Attorney Schoenecker will not relapse,
he should be required to continue monthly counseling either with
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Mr.   Harrison    or   a    counselor     with        similar    credentials     for   a

period of three years, with the counselor being required to file

semi-annual progress reports with the OLR.                       We also agree with

the referee that Attorney Schoenecker should be responsible for

the full costs of this reinstatement proceeding.

      ¶23   IT IS ORDERED that the petition for reinstatement of

the license of James M. Schoenecker to practice law in Wisconsin

is granted, effective the date of this order.

      ¶24   IT IS FURTHER ORDERED that, for a period of three

years from the date of this order, James M. Schoenecker shall be

required to continue monthly counseling, either with his current

counselor    or   a    counselor        with     similar        credentials.        The

counseling    should       address      not     only     James     M.   Schoenecker's

gambling    addiction,      but    also       other    possible      causes   for   his

previous    misconduct.           The   counselor        shall     file   semi-annual

progress reports with the Office of Lawyer Regulation.

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

of this order, James M. Schoenecker shall pay to the Office of
Lawyer   Regulation        the    costs   of     this     proceeding,      which    are

$14,754.78 as of October 7, 2019.




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