                                                              2013 WI 39

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2007AP2763-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Barry LeSieur, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Barry LeSieur,
                                  Respondent-Appellant.


                            DISCIPLINARY PROCEEDINGS AGAINST LESIEUR

OPINION FILED:          May 3, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                               2013 WI 39
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.   2007AP2763-D


STATE OF WISCONSIN                                :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Barry LeSieur, Attorney at Law:

Office of Lawyer Regulation,                                              FILED
                Complainant-Respondent,
                                                                      MAY 3, 2013
        v.
                                                                        Diane M. Fremgen
                                                                     Clerk of Supreme Court
Barry LeSieur,

                Respondent-Appellant.




        ATTORNEY       disciplinary         proceeding.         Attorney's          license

suspended.


        ¶1      PER   CURIAM.    In   this     matter,     we    consider       a    motion

filed      by   the    Office    of   Lawyer    Regulation        (OLR)        seeking    a
suspension of the license of Attorney Barry LeSieur to practice

law   in     Wisconsin    due    to   his    alleged     noncompliance          with     the
conditions       we    imposed   on    his    practice      of    law     in    a    prior

disciplinary opinion and order in this same proceeding.                             See In
re Disciplinary Proceedings Against LeSieur, 2010 WI 117, 329

Wis. 2d 349, 789 N.W.2d 572 (LeSieur I).                        Because it appeared
                                                                          No.   2007AP2763-D



that     there    were    factual       issues         regarding      whether       Attorney

LeSieur     had   violated       his     obligations          under       LeSieur    I,   we

referred    the    OLR's       motion    to       a    referee     with    directions      to

conduct a hearing, to make findings of fact and conclusions of

law regarding whether or not Attorney LeSieur had complied with

our     order,    and     to     make     a       recommendation          regarding       the

appropriate type and level of sanction, if any, that the court

should impose on Attorney LeSieur, if noncompliance was found.

After    receiving       the   referee's          report    and    recommendation,        we

issued an order to Attorney LeSieur directing him to show cause

why his license should not be suspended as recommended by the

referee.     We now review the report and recommendation of the

referee and Attorney LeSieur's response to the order to show

cause.

       ¶2   Based on Attorney LeSieur's default as found by the

referee, we conclude that Attorney LeSieur failed to comply with

the order of this court in LeSieur I and with multiple orders of
the referee.         We therefore determine that Attorney LeSieur's

license to practice law in Wisconsin should be suspended until

such time as he meets the requirements we set forth below, that

the conditions on his practice of law in this state should be

extended for an additional period of two years following the

date on which his license is reinstated, and that he should be

required to pay the full costs of this motion proceeding.

       ¶3   The    conduct      underlying            the   original      charge    against

Attorney    LeSieur      was    his     third         conviction    for    driving    while


                                              2
                                                                    No.      2007AP2763-D



intoxicated       (OWI).1         In   addition       to   publicly       reprimanding

Attorney LeSieur, the court placed a number of conditions on his

continued      practice      of    law.       In   particular,      the      LeSieur    I

decision and order required Attorney LeSieur to execute one or

more releases that complied with the federal Health Insurance

Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.

§ 201 et seq., and all applicable federal and state laws and

that authorized the disclosure of his health records for each

treatment provider who was providing or had provided alcohol-

related   or    substance         abuse-related       treatment    or     services     to

Attorney LeSieur within the preceding ten years.                          The releases

were to authorize disclosure to his treatment providers so that

they could share information regarding his condition and to the

OLR so that it could monitor his situation and ensure compliance

with the conditions imposed on his practice.                      The court's order

in LeSieur I directed the OLR to maintain the confidentiality of
all of the documents or information it received.                             Our order

required the release(s) signed by Attorney LeSieur to remain in

effect for a period of two years.

     ¶4     The      order   in     LeSieur    I     further   required        Attorney

LeSieur   to    undergo      an    alcohol     and    other    drug     abuse    (AODA)

evaluation      by    a   professional         AODA    counselor        or    treatment

provider, who was to produce a written report of the evaluation.

The written report was required to include recommendations for


     1
       Although it was Attorney LeSieur's third OWI conviction,
it was the fifth time that he had been arrested for OWI.

                                          3
                                                                             No.        2007AP2763-D



Attorney        LeSieur's           continuing          treatment       or         maintenance.

Attorney        LeSieur       was     ordered          to    comply      with           all        such

recommendations.

      ¶5    Finally,          the    LeSieur       I    order     mandated         that       for    a

period     of    two    years,        Attorney         LeSieur    must      undergo           random

alcohol and substance abuse screenings at his own expense.                                          The

OLR was instructed to direct and monitor these screenings.

      ¶6    In       June     2011    the    OLR       filed     the   motion           now    under

consideration.2         Its motion simply moved the court to issue an

order requiring Attorney LeSieur to show cause why his license

should not be suspended for willful failure to comply with the

conditions set forth in LeSieur I.                      Supporting the motion was an
affidavit       of    Linda    Albert,       the       monitoring      supervisor             of    the

Wisconsin       Lawyers        Assistance          Program       (WisLAP).                Albert's

affidavit stated that following the issuance of the LeSieur I

decision, the OLR had referred Attorney LeSieur to WisLAP as its

designee for monitoring the conditions imposed on his practice.

The   affidavit         provided       a     detailed        recitation            of     WisLAP's

interactions          with     Attorney       LeSieur.              After      receiving             a

sufficient AODA assessment from the AODA counselor that Attorney

LeSieur    had       been    seeing    and    after         discussions       with        Attorney

LeSieur, WisLAP finally received a signed monitoring contract in

March 2011.          Albert alleged that over the course of the next

      2
       As it did in In re Disciplinary Proceedings Against
Lister, 2012 WI 102, 343 Wis. 2d 532, 817 N.W.2d 867, the OLR
filed the present motion for a suspension in the original
disciplinary proceeding rather than initiating a separate
investigation and new disciplinary proceeding.

                                               4
                                                                           No.    2007AP2763-D



month,       Attorney     LeSieur     had      violated       the    WisLAP       monitoring

contract and the conditions imposed in LeSieur I in a number of

ways.

        ¶7     This court initially directed the OLR to provide the

legal    basis      for   bringing        such     an   enforcement        motion       in     the

underlying       disciplinary       proceeding          rather      than       filing    a     new

complaint and to explain the nature of the suspension it was

seeking.       The OLR subsequently responded that, although it could

bring a new complaint alleging a charge of noncompliance with a

court order, it brought the motion seeking an order to show

cause as a way to expedite the matter.                        It further stated that

it was seeking an indefinite suspension of Attorney LeSieur's

license      until    such   time        as   he   complied      with      the    conditions

imposed in LeSieur I.              Finally, it asserted that this court had
a legal basis either under its contempt powers or its inherent

authority      to    regulate      the    practice       of   law    in    this        state    to

suspend Attorney LeSieur's license immediately after issuing an

order to show cause and receiving a response.

     ¶8       Without deciding the motion, we issued an order on

October 14, 2011, requiring Attorney LeSieur to file a response

to the OLR's motion and referring the motion to a referee since

there appeared to be potential disputes of fact.                                   Our order

directed the referee to conduct an evidentiary hearing and then

to file a report that contained (1) findings of fact "as to all

relevant facts that relate to Attorney LeSieur's compliance or

noncompliance        with    the    conditions          set   forth       in     the    court's

[LeSieur I decision]," (2) conclusions of law as to "whether
                                               5
                                                                                  No.     2007AP2763-D



Attorney       LeSieur's         conduct       has        or    has        not    violated      those

conditions," and (3) a recommendation as to what sanctions or

discipline, if any, should be imposed on Attorney LeSieur if he

was    found       to    have    failed       to    comply       with       the    conditions      in

LeSieur I.

       ¶9      Reserve Judge William Eich was ultimately appointed as

the referee.            The OLR filed two motions before the referee.                             One

motion      sought       an     order   from        the    referee          directing       Attorney

LeSieur to sign a new release of medical records.                                           Attorney

LeSieur initially signed such a release on October 27, 2010, as

required      by    the       LeSieur     I    decision.              On    October       26,   2011,
however, Attorney LeSieur notified the OLR that he was revoking

that   release.           The     OLR's       motion      asked       the    referee       to   order

Attorney LeSieur to sign a new copy of that same release.

       ¶10     Attorney LeSieur objected to signing another release

form because he viewed the OLR's release as going beyond what

this court had ordered in LeSieur I and because he viewed the

information already released to have been improperly disclosed

to inappropriate persons/entities, including WisLAP and others

with whom WisLAP had spoken.                       He also objected that the release

violated both HIPAA and state law because it did not limit the

use    of    the    released       information            to    the    present          disciplinary

proceeding         and    because       it     did        not    require          the    return    or

destruction of all copies of released records upon completion of

this disciplinary proceeding.

       ¶11     The OLR's second motion asked the referee to order

Attorney LeSieur to undergo an independent medical examination
                                                   6
                                                                  No.     2007AP2763-D



(IME) by addiction psychiatrist Dr. Thomas Rowell.                      The request

for a second, independent examination by a specific addiction

psychiatrist stemmed from WisLAP, which alleged that although

Attorney       LeSieur    had     undergone   an    AODA    evaluation       by   the

counselor he had already been seeing, in compliance with the

LeSieur I requirement, he was not being sufficiently forthcoming

with his counselor and other health care providers and not being

sufficiently compliant with its monitoring program.                         It made

this evaluation by an independent addiction psychiatrist one of

the terms of a modified monitoring contract that it demanded

Attorney LeSieur must sign.

     ¶12       Attorney      LeSieur   refused     to   execute     the     modified

contract because, among other things, he viewed the requirement

of another evaluation by an addiction psychiatrist as beyond the

scope of the LeSieur I decision and as an additional financial
burden he should not have to bear.

        ¶13    In a decision and order dated February 28, 2012,3 the

referee generally rejected Attorney LeSieur's objections to the

OLR's       release   form   as   exceeding   the   scope    of   the     LeSieur   I

decision, with the exception of a single phrase that the referee

deleted.       The referee therefore found Attorney LeSieur to be out

of compliance with his obligation to sign a release form and

ordered Attorney LeSieur to execute the release proffered by the

OLR (with the deletion of the single phrase).
        3
       The order was filed with the clerk of this court on
March 1, 2012.   Because the referee referred to his decisions
and orders by the dates on which he signed them, this opinion
will also do so in order to avoid confusion.

                                         7
                                                                    No.       2007AP2763-D



       ¶14   The referee also rejected Attorney LeSieur's arguments

against an order for an IME.             Attorney LeSieur contended that

the referee lacked authority to issue such an IME order because

(1) the rule of civil procedure authorizing IMEs, Wis. Stat.

§ 804.10, speaks of "the court in which the action is pending"

as the entity that can order an IME, and (2) an IME was not

mentioned as one of the conditions of practice set forth in the

LeSieur I decision.       The referee concluded that since SCR 22.16

gave him the powers of a circuit court trying a civil matter, he

had the authority to order an IME.                 He also concluded that the

results of an IME would be relevant to whether Attorney LeSieur

had violated the conditions imposed in LeSieur I and to what the

appropriate sanction might be.               He therefore ordered Attorney

LeSieur to schedule an appointment with Dr. Rowell.

       ¶15   When the referee learned that Attorney LeSieur had not

complied with the February 28, 2012 order, he issued a second

order on April 18, 2012, explicitly directing Attorney LeSieur

to   execute   the   revised    medical       release       and    to     schedule      an

appointment with Dr. Rowell by April 25, 2012.

       ¶16   Attorney   LeSieur   did       not    comply    with       the    referee's

orders.      Instead, he filed a motion for a protective order in

this court seeking to have the referee's interlocutory orders

declared unlawful and void.             In an order dated May 22, 2012,

this   court   denied   the    motion    as       an   improper     attempt        at   an

interlocutory     appeal.         Because         Attorney        LeSieur's       motion

complained that the OLR's release form was still broader than

the language of the court's order in LeSieur I, the May 22, 2012
                                        8
                                                                         No.     2007AP2763-D



order further clarified that the release that Attorney LeSieur

must sign should include the records of health care providers or

mental health providers

      relating to the prescribing of, the use of, or the
      potential use of (1) potentially addictive pain
      medications,   (2)   anti-depressant  or   anti-anxiety
      medications, or (3) mood-altering medications.      The
      release need not authorize the disclosure of (a)
      medical records that were/are not created by treatment
      providers who are providing or have provided alcohol-
      related   or  substance   abuse-related  treatment   or
      services and (b) medical records that were/are not
      related to the prescribing of, the use of, or the
      potential use of (1) potentially addictive pain
      medications,   (2)   anti-depressant  or   anti-anxiety
      medications, or (3) mood-altering medications.
The   court        also     directed         the     referee       to     give       further

consideration       to    Attorney      LeSieur's      arguments        that     the   OLR's

release failed to comply with HIPAA and its regulations and with

Wis. Stat. § 146.82.

      ¶17    The referee invited additional briefing from Attorney

LeSieur on        the    HIPAA and      § 146.82      issues.       Attorney         LeSieur

argued that compliance with HIPAA required the releases to state

(1) that the parties were prohibited from using or disclosing
his protected health information for any purpose other than the

present     disciplinary        proceeding,         and      (2)   that        all   parties

receiving copies of his protected health records must return or

destroy those records at the conclusion of this proceeding.

      ¶18    In    addition,     because          Attorney    LeSieur         continued     to

refuse      to    sign    the   release       or     to   schedule        an     IME      with

Dr. Rowell,       the     OLR   filed    a    motion      asking        the     referee    to

conclude that Attorney LeSieur was in default as a sanction for

                                              9
                                                                  No.     2007AP2763-D



his disobedience of the referee's orders and to issue a report

on the basis of the allegations in the OLR's original motion for

a suspension.

        ¶19   In an order dated July 23, 2012, the referee addressed

both the HIPAA issues and the OLR's motion for default.                           With

respect to the release form's compliance with HIPAA, the referee

indicated     that     while    he   found    the   OLR's    releases     to    be   in

compliance      with    HIPAA    and   applicable      Wisconsin      statutes,      he

nonetheless believed that "it would not be inappropriate" to add

Attorney      LeSieur's    requested       brief    additions    to     the    release

forms, and he directed the OLR to do so.                 The referee, however,

found that Attorney LeSieur had failed to offer any reasons to

make additional alterations to the releases.                    He therefore once

more ordered Attorney LeSieur to execute the release forms, as

modified.       He also again ordered Attorney LeSieur to make an

appointment for an IME with Dr. Rowell within 10 business days

and to respond to the OLR's discovery requests.

        ¶20   With respect to the OLR's default motion, the referee
found    that   Attorney       LeSieur's     conduct   was    indeed      egregious,

which would support finding him to be in default.                       The referee,
however, declined to declare Attorney LeSieur to be in default

or impose other sanctions at that time.                Giving Attorney LeSieur
one more chance, the referee held the OLR's default motion in

abeyance "pending [Attorney] LeSieur's compliance with the terms
and conditions [of the July 23, 2012 order]."

    ¶21       Attorney LeSieur responded to the July 23, 2012 order

in three ways.          First, he sent a letter to the referee that
                                         10
                                                                      No.   2007AP2763-D



again argued that the referee lacked authority to order the IME.

Second, Attorney LeSieur altered the release form in a number of

significant ways that he believed to be appropriate, executed

the revised form, and then sent it to the OLR.                        Third, Attorney

LeSieur did respond to the OLR's discovery requests, but the OLR

asserted that several of his answers were nonresponsive to the

actual requests.

       ¶22    The OLR brought the alteration of the release form and

its belief that some discovery responses were nonresponsive to

the attention of the referee.                The OLR asked the referee to take

up again its motion for sanctions, including a declaration of

default, due to Attorney LeSieur's continuing noncompliance with

the referee's orders.

       ¶23    In    light    of    Attorney         LeSieur's     response     to     his

July 23,     2012    order, the       referee       proceeded    to   issue    a final

report and recommendation on August 16, 2012.

       ¶24    The    referee    noted       that    where   a   respondent     attorney

engages      in    conduct   during     a    disciplinary       proceeding     that    is
found to be egregious, a referee is warranted, as a sanction for

violation of the referee's orders, to declare the respondent
attorney to be in default and to proceed on the basis of the

OLR's complaint.         In re Disciplinary Proceedings Against Kelly,

2012    WI    55,    ¶24,    341    Wis. 2d 104,        814     N.W.2d 844;     In     re

Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286

Wis. 2d 24, 704 N.W.2d 581.

       ¶25    The     referee      once      more     found     Attorney      LeSieur's

persistent and ongoing refusal to comply with the order of this
                                             11
                                                                    No.     2007AP2763-D



court       and    with   the   referee's    orders    to    be     egregious.       In

particular,         the   referee   pointed    to     the    fact    that     Attorney

LeSieur had willfully disobeyed the referee's three orders to

execute the medical records release form and to schedule an IME

with the designated addiction psychiatrist.                  The referee further

noted that in the ten months that had passed since the referral

of the matter to the referee, the situation regarding Attorney

LeSieur had remained essentially the same as it had been at the

time of the court's order.             Although Attorney LeSieur had been

ordered multiple times to execute the medical records release

form, he still had not done so, except for signing a release

form       that    he   had   unilaterally    and   significantly         altered    to

comport with his view of what was lawful.                   The referee therefore

concluded that, based on the allegations contained in the OLR's

motion and accompanying affidavit, which were now established as

true due to Attorney LeSieur's default, Attorney LeSieur had

intentionally failed to comply with the conditions imposed on

his practice in this court's LeSieur I decision and with the

referee's multiple orders.

       ¶26        Given Attorney LeSieur's noncompliance and the court's

concern      for monitoring       Attorney    LeSieur's      alcohol      dependence,

the referee made four recommendations to the court:

       •    Attorney LeSieur's license to practice law in Wisconsin

            should be suspended forthwith;

       •    Because Attorney LeSieur has not yet complied with the

            conditions imposed on his practice of law by this court

            in LeSieur I, those conditions should be extended for an
                                         12
                                                                    No.    2007AP2763-D



          additional two years from the date of their expiration or

          the     date    on    which       Attorney    LeSieur's         license   is

          reinstated, whichever is later;

     •    Attorney       LeSieur     should      be    ordered      to     submit   to

          monitoring of his compliance with those conditions by

          WisLAP, as the OLR's designee; and

     •    Attorney LeSieur should be ordered to submit to an IME

          and evaluation by Dr. Rowell.

     ¶27     Following the filing of the referee's report, although

there is no rule that specifically authorizes an appeal from a

referee's report in this type of situation, Attorney LeSieur

filed a document labeled an "appeal" from the referee's report.

The "appeal" made essentially the same arguments that Attorney

LeSieur had made to the referee regarding the referee's lack of

authority to order him to sign release forms or undergo an IME.

It also objected to the presence or absence of certain language

in the release forms.

     ¶28     On    September     17,    2012,    in    light   of    the    referee's
report and recommendation, this court issued an order directing

Attorney LeSieur to show cause why his license should not be
suspended.        Attorney LeSieur filed a short response, in which he

essentially argued that this court's procedure for considering
the OLR's motion was a violation of the court's own rules.                          He

noted this court's comments in In re Disciplinary Proceedings

Against    Lister,       2012   WI   102,    ¶¶19-22,    343     Wis. 2d 532,       817

N.W.2d 867 (Lister II), where we recognized that there are no

specific rules that address the post-discipline type of motion
                                            13
                                                                              No.        2007AP2763-D



filed by the OLR in that case and this one and explained the

basis for referring the OLR's motion to a referee.                                         Attorney

LeSieur      argued    that          because      the    rules         provide       a     complete

procedure for investigating and prosecuting violations of the

Rules of Professional Conduct for Attorneys, the OLR and the

court were bound to use only that procedure for litigating his

alleged violation of his obligations under LeSieur I.                                      In other

words, he contended that the OLR should have been required to

obtain a finding of cause to proceed from a preliminary review

committee      and     then      should         have     filed         a   new      disciplinary

complaint rather than filing a sanction motion in the existing

disciplinary         case.           According          to       Attorney      LeSieur,          that

complaint should have been handled in the ordinary manner under

SCRs   22.16-22.17,         with      a   referral       to       a    referee      and    then    an

opportunity for a full appeal.                        In any event, he asserted that

his appeal of the referee's report and recommendation was still

proper under SCR 22.17 and that this court should review the

referee's     report       in    the      context       of       his    appeal      (after       full

briefing and possibly oral argument).
       ¶29   First, we          will      address       Attorney        LeSieur's         arguments

regarding     the     procedures          used    to     resolve        any    factual         issues
regarding the OLR's motion and to review the referee's report

and    recommendation.               As   an     initial         matter,      while       we   again
acknowledge that our rules do not contain an explicit procedure

for    resolving       a     motion       alleging           a    violation         of     a   prior

disciplinary        order       in    the      same     disciplinary          proceeding,         we

reiterate that the procedure we followed in both Lister II and
                                                 14
                                                                                           No.    2007AP2763-D



this       case    follows             a    procedure               similar       to   the    one       that    we

utilized in In re Disciplinary Proceedings Against Hetzel, 124

Wis. 2d 462,             369       N.W.2d 394                  (1985).            That     procedure        gave

Attorney LeSieur notice of the allegations against him through

the OLR's motion and allowed Attorney LeSieur the opportunity to

present evidence and argument to a referee regarding what he did

in    response          to       our       LeSieur         I    order       and    whether       his    actions

violated          his       obligations               under          that    order.          Although       this

court's rules provided the OLR a basis on which it could have

chosen to proceed with an entirely new disciplinary complaint in

a    new    proceeding,                there      is       no        existing      rule    that     expressly

requires          it    to       initiate             a    separate          disciplinary         case      when

seeking to compel compliance with an order of this court.                                                 Thus,

we reject Attorney LeSieur's contention that our referral of the

OLR's      motion           in    the       underlying               disciplinary         proceeding       to   a

referee was a violation of our rules.

       ¶30        We also reject Attorney LeSieur's argument that we are

compelled to recognize his "appeal."                                        Rule 22.17 is part of the

set    of    rules          that       govern         the           procedure      for    handling       formal
disciplinary complaints filed by the OLR.                                              Rules 22.11-22.18

provide the procedure that is to be followed by the OLR and a
respondent             attorney            for    litigating                and    reviewing        a    formal

complaint in the first instance.                                      Rule 22.17, which authorizes
an    appeal,          is    just          one    part         of     that    procedure.            Thus,      the

context makes clear that SCR 22.17 applies to referee reports

that       are    addressed             to       an       OLR       complaint.           Attorney       LeSieur

already had the benefit of such a full litigation procedure and
                                                               15
                                                                                 No.     2007AP2763-D



full appeal when the OLR's complaint in this case was initially

considered.              This    court       ultimately         rejected        his    appeal,      and

imposed       a       public     reprimand         and    conditions        on     his      continued

practice of law.               LeSieur I, 329 Wis. 2d 349, ¶¶15, 18, 20-24.

        ¶31       The    OLR     filed       a     motion      in    the    same       disciplinary

proceeding seeking the imposition of a sanction due to Attorney

LeSieur's         failure        to    comply      with       the    conditions        we    imposed.

This    was       a     motion    in    an       existing      proceeding        and     not    a   new

complaint.            Thus, the full procedure of SCRs 22.11-22.18 did not

apply    by       its     terms.        Although         we    referred     the        motion    to    a

referee for the completion of certain tasks, which mirrored the

way in which a complaint would be handled, that does not mean

that the report the referee filed in response to our referral

order gives rise to a right to appeal under SCR 22.17.                                         Indeed,

because we noted this fact in Lister II, we issued an order in
that    proceeding          that       afforded         the    parties     an    opportunity          to

object to the referee's report.                           343 Wis. 2d 532, ¶23.                 We did

essentially the same thing in this case when we issued an order

to show cause to Attorney LeSieur.                             He was given notice of the

referee's findings by receiving a copy of the referee's report

and    an     opportunity          to    be      heard     regarding       why     the      referee's

findings       should       not       lead    to    a    suspension        of    his     license      to

practice law in Wisconsin.

       ¶32        We now turn to our review of the referee's report.                                  As

in     other       review        situations,         we       will    affirm      the       referee's

findings of fact unless they are clearly erroneous, but we will

review the referee's conclusions of law on a de novo basis.
                                                    16
                                                                     No.     2007AP2763-D



Lister II, 343 Wis. 2d 532, ¶23; see also In re Disciplinary

Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,

740 N.W.2d 125.             "We will determine the appropriate type and

level of sanction or discipline given the particular facts of

the    case,       independent      of   the      referee's     recommendation,          but

benefiting from it."            Lister II, 343 Wis. 2d 532, ¶23; see also

In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44,

261 Wis. 2d 45, 660 N.W.2d 686.

       ¶33     Our review of this case, however, is framed by the

fact that the referee declared Attorney LeSieur to be in default

due to his repeated refusal to comply with the orders of the

referee.       Thus, the issues we review are limited to whether the

referee      erroneously      exercised        his   discretion     in    finding     that

Attorney LeSieur had repeatedly disobeyed the referee's orders

and therefore whether a declaration of default and the resulting

disregard of his substantive arguments were proper.                          See Martin
v.    Griffin,      117    Wis. 2d 438,        344   N.W.2d 206     (Ct.    App.     1984)

(limiting review of default judgment entered following failure

to    answer       to     whether    trial      court    properly        exercised       its

discretion in granting default and determining that defendant's

substantive arguments had been waived by default).

       ¶34    In     this    instance,       the      referee     declared     Attorney

LeSieur to be in default, disregarded his substantive response

to the OLR's motion, and proceeded on the basis of the facts

alleged in the            OLR's motion       and     supporting   materials        due    to

Attorney      LeSieur's       conduct    during       the   consideration       of       the

motion.      This is akin to a circuit court granting a judgment by
                                             17
                                                                         No.        2007AP2763-D



default in a civil case because the defendant failed to obey

court orders or statutory requirements or to provide discovery.

See, e.g., Wis. Stat. §§ 802.10(7) (violation of scheduling or

pretrial    order),      804.12      (failure         to     provide    discovery),           and

805.03 (failure to prosecute action or to comply with procedural

statutes).      We have held that referees in disciplinary cases may

similarly declare a respondent attorney to be in default when

the attorney has disobeyed the referee's scheduling or pretrial

orders, violated applicable rules of procedure, or failed to

comply with his/her discovery obligations in the disciplinary

proceeding.      See, e.g., In re Disciplinary Proceedings Against
Kelly, 2012 WI 55, ¶21, 341 Wis. 2d 104, 814 N.W.2d 844; In re

Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286

Wis. 2d 24,      704   N.W.2d 581;          In        re     Disciplinary          Proceedings

Against Haberman, 128 Wis. 2d 390, 391-92, 395, 382 N.W.2d 439

(1986).      Because     of    the    drastic         nature     of    such    a     sanction,

however, as in civil cases, we have required the referee to find

that the respondent attorney's actions were "egregious" or "in

bad   faith"    before      declaring       a    respondent       attorney          to   be   in

default.     Kelly, 341 Wis. 2d 104, ¶22 (citations omitted).                                 An

"extreme,      substantial      and      persistent"           failure        to     follow     a

referee's    orders    without       a   clear         and    justifiable          excuse     can

constitute egregious conduct.                   See Industrial Roofing Serv. v.

Marquardt,     2007    WI     19,    ¶43,       299    Wis. 2d 81,       726        N.W.2d 898

(citations omitted).

      ¶35    In this case the referee found that Attorney LeSieur's

repeated     violation        of     his        "pretrial"        orders           constituted
                                            18
                                                                           No.      2007AP2763-D



"egregious" conduct that warranted disregarding his response to

the motion and proceeding on the basis of the allegations in the

OLR's       motion   and    supporting        documents.              Generally,       we   will

sustain such a finding and sanction "if there is a reasonable

basis for the circuit court's [or referee's] determination that

the noncomplying party's conduct was egregious and there was no

'clear and justifiable excuse' for the party's noncompliance."

Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 276-77, 470

N.W.2d 859      (1991),         overruled     on     other      grounds        by   Industrial

Roofing, 299 Wis. 2d 81, ¶61; see also id., ¶41 (decision to

impose sanction in standard civil action and the choice of which

sanction       to    impose      are      reviewed      for     erroneous        exercise      of

discretion).4

        ¶36    The referee's finding of egregiousness and declaration

of default is not an erroneous exercise of discretion in this

case.         The    evidence        is     clear       that        Attorney     LeSieur     has

repeatedly and willfully refused to comply with the terms of

orders issued both by the referee and this court.                              In LeSieur I,

this court ordered Attorney LeSieur to execute a release for

certain       categories        of   information.              He    did   execute      such    a

release,      but    it    is    undisputed        he    then       revoked     that   release


        4
       There is no issue in this case regarding whether an
attorney's conduct can be imputed to a party for purposes of
imposing a sanction because Attorney LeSieur has represented
himself throughout this proceeding. Cf. Industrial Roofing, 299
Wis. 2d 81, ¶61 (erroneous exercise of discretion to impute
attorney's conduct to client and enter a sanction of dismissal
where client is blameless).

                                              19
                                                                No.     2007AP2763-D



approximately one year later, one year prior to the expiration

date for the release established by this court.                       The referee

ordered him on two occasions to sign a new copy of the release,

from which one potentially problematic phrase had been removed.

Attorney     LeSieur,     however,      did   not    execute   the     release    in

compliance with either order.              He did not execute the release

even after this court denied his motion for interlocutory review

and directed the referee to proceed with the matter and give

further consideration to Attorney LeSieur's arguments based on

HIPAA and Wis. Stat. § 146.82.            Attorney LeSieur raised only two

claims that the release form did not comply with those privacy

provisions of state and federal law.                 In an effort to address

Attorney LeSieur's concerns, the referee directed the OLR to add

language to the release form that addressed Attorney LeSieur's

two requests and directed him yet again to execute the release

as now revised.          Even after obtaining what he wanted, Attorney

LeSieur still disregarded the referee's third order and signed

the release only after substantially modifying it to his liking.
      ¶37    Attorney LeSieur's noncompliance did not end with his

refusal to execute a release form as ordered.                         There is no
dispute      that   he     also     repeatedly      refused    to     undergo     an

independent medical examination by an addiction specialist.                      The
referee's orders to undergo such an examination were clear, but

Attorney LeSieur willfully disobeyed the orders.                     While he may
not   have    agreed     with     the   orders,     Attorney   LeSieur     is    not

authorized to determine which orders he will obey and which he

is entitled to flaunt or modify to his liking.                 Especially once
                                         20
                                                                               No.    2007AP2763-D



this court had rejected his interlocutory appeal, he should have

understood that he had no choice but to comply with the orders

of the referee.            He continued, however, to refuse to undergo an

IME,   which       supports       a    presumption          that   he    has     not     been   in

compliance with his obligations under our order in LeSieur I and

lacked a meritorious defense to the OLR's motion.

       ¶38    Finally, we note that the referee found in one of his

interlocutory orders that Attorney LeSieur had failed to comply

with his obligations to respond to the OLR's discovery requests

and    that        he   had      not    provided          a   lawful       basis       for      his

noncompliance.              His       failure        to     provide      proper        discovery

responses also warrants a presumption that he lacked a defense

to the OLR's motion.

       ¶39    Attorney        LeSieur     does        not     deny      that     these    events

happened      or    that    he    chose    not       to   comply      with      the    referee's

orders.      An attorney is not free to disregard the orders issued

by a referee in an attorney disciplinary proceeding, even when

the attorney believes that the referee's orders are invalid or

require modification.                 Only this court may declare a referee's
orders invalid or excuse an attorney from complying with them.

We see no reason to invalidate the orders issued by the referee
in this matter.            Attorney LeSieur's repeated and willful failure

to comply with those orders is therefore egregious and merits
finding him to be in default with respect to the OLR's motion.

We therefore agree with the referee that the OLR's allegations

that Attorney LeSieur failed to comply with the provisions of


                                                21
                                                                          No.    2007AP2763-D



this court's order in LeSieur I are accepted as true by virtue

of Attorney LeSieur's default.

        ¶40    We turn now to the appropriate sanction that should be

imposed as a result of Attorney LeSieur's noncompliance with our

orders.        Attorney LeSieur has been convicted on three occasions

of operating a motor vehicle while intoxicated and was arrested

on suspicion of that offense on two other occasions that did not

result        in    valid     convictions.             Attorney         LeSieur's     record

indicates a potential problem with alcohol and other addictive

or mood-altering medications.                       He claimed during the initial

disciplinary proceeding that he has not consumed alcohol since

2006.         If    that    is   accurate,      he     is    to    be    commended.      His

refraining from alcohol indicates some recognition that he has

problems in this area that require affirmative steps.                                 On the

other hand, his actions since the release of LeSieur I indicate
repeated attempts to thwart the monitoring of his condition by

the OLR and its designee.                 One who is truly eager to overcome

any   problems       with     alcohol     or    mood-altering           medications    would

welcome       assistance,        but   Attorney       LeSieur      has    frustrated     the

efforts of this court, the referee, and WisLAP to ensure that he

remains on a productive path.                  This is a troubling pattern.

        ¶41    We    simply      cannot   tolerate          such   disobedience     of   our

orders.       Accordingly, we will suspend Attorney LeSieur's license

until he complies with the orders of this court.                                To leave no

room for doubt or argument, we will clarify the nature of the

release Attorney LeSieur must now sign and we will expressly

require him to undergo an independent medical examination by
                                               22
                                                                               No.     2007AP2763-D



Dr. Thomas         Rowell       or   another       addiction       psychiatrist            or     other

treatment          provider      designated         by    the      OLR.        Given        Attorney

LeSieur's failure to comply thus far, the conditions that we

imposed in LeSieur I and those we add in this opinion shall be

extended to remain in effect for a period of two years from the

date on which Attorney LeSieur's license is reinstated.

        ¶42    We    now    turn      to    the    issue      of     costs.          The    OLR    has

indicated that the costs of this supplemental proceeding due to

Attorney           LeSieur's         noncompliance            were     $8,987.16             as     of

September 6, 2012.              We find no reason to depart from our general

practice       of    requiring        a     respondent         attorney,        whose        conduct

caused the OLR to bring this proceeding, to pay the full costs

of the proceeding.              Attorney LeSieur's conduct led to the filing

of the OLR's motion and the resulting proceedings.                                         He should

therefore be required to pay the associated costs.

        ¶43    IT IS ORDERED that the license of Barry LeSieur to

practice law in Wisconsin is suspended, effective May 20, 2013,

until    such time          as he demonstrates                full    compliance           with    the

following conditions and until further order of the court:
      (A)      Barry       LeSieur         shall       sign     reciprocal           releases       of

confidentiality.            Such release or releases shall authorize the
disclosure of Barry LeSieur's health records possessed by each

treatment provider who is providing or has provided alcohol-
related       or    substance        abuse-related            treatment        or    services       to

Barry LeSieur since September 30, 2000, and shall also authorize

the     disclosure         by    health      care        providers        or    mental          health

providers of health records relating to the prescribing of, the
                                                  23
                                                              No.     2007AP2763-D



use of, or the potential use of (1) potentially addictive pain

medications, (2) anti-depressant or anti-anxiety medications, or

(3) mood-altering medications.            Such release or releases shall

authorize disclosure to all other health care or mental health

providers covered by the release or releases and to the Office

of   Lawyer    Regulation   and   those    persons    or   entities     that    it

designates to assist it in monitoring Barry LeSieur's compliance

with his obligations under this order.                The Office of Lawyer

Regulation and its designees shall maintain as confidential all

information or documents received pursuant to such release or

releases and shall use such information or documents for the

purpose   of   monitoring   Attorney      LeSieur's    compliance      with    the

obligations imposed on him by the orders of this court.                        The

release or releases required by this paragraph shall remain in

effect for a period of two years from the date on which Attorney

LeSieur's license to practice law in Wisconsin is reinstated by

this court.      The release or releases to be signed by Attorney

LeSieur shall comply with this paragraph and may be in a form
substantially similar to the release form attached as Exhibit 2

to the referee's report filed on August 27, 2012, without any of
the alterations made to that release form by Attorney LeSieur.

The release form shall be modified to include the expiration
date identified above.       Attorney LeSieur must sign the release

or releases in the form provided to him by the Office of Lawyer
Regulation and may not make any modifications or alterations to

the language of the release.              For purposes of the return or

destruction     of   disclosed    medical    records,      this     disciplinary
                                     24
                                                                            No.     2007AP2763-D



proceeding will be completed at such time as Attorney LeSieur is

no longer subject to any conditions on his practice of law in

Wisconsin.

        (B)    Barry        LeSieur        shall         schedule     and         undergo        an

independent         medical       examination       and    evaluation        by    Dr.    Thomas

Rowell    or     another         addiction     psychiatrist          or    other       treatment

provider designated by the Office of Lawyer Regulation.                                         The

addiction psychiatrist or other treatment provider who performs

this examination and evaluation shall provide to the Office of

Lawyer        Regulation         a   written       report,       which      assesses       Barry

LeSieur's substance abuse history and current status and makes

specific        recommendations             for      Barry        LeSieur's         continuing

treatment       or     maintenance.               This     written        report       shall    be

maintained by the Office of Lawyer Regulation and its designees

as confidential pursuant to the release or releases described in

the     preceding         paragraph.         If     Attorney      LeSieur         attempts      to

schedule an appointment with Dr. Rowell and he is unable to see

Attorney LeSieur within 60 days after the date of this order,
the     Office       of     Lawyer        Regulation        shall     designate          another

addiction specialist or treatment provider who will be able to
conduct       the    independent       examination         and    evaluation           within    60

days.
      (C)      Barry LeSieur shall enter into the amended monitoring

contract       with       the     Wisconsin       Lawyers     Assistance           Program       as
previously submitted to him by that program.

      ¶44      IT     IS        FURTHER     ORDERED        that      prior        to     seeking

reinstatement and continuing for a period of two years following
                                               25
                                                                       No.     2007AP2763-D



the reinstatement of his license, Barry LeSieur shall, at his

own    expense,       submit    to    random    alcohol        and    substance       abuse

screenings,       directed      and   monitored     by    the        Office    of   Lawyer

Regulation and its designee.

       ¶45    IT IS FURTHER ORDERED that Barry LeSieur shall comply

with all written recommendations set forth in the original AODA

evaluation and with all written recommendations set forth in the

written      evaluation    report      that     results    from       the     independent

medical      examination       described   in    ¶43(B)        of    this    opinion    and

order.

       ¶46    IT IS FURTHER ORDERED that the conditions on Barry

LeSieur's practice of law in Wisconsin set forth in this opinion

shall remain in effect for a period of two years from the date

on    which    this    court     reinstates      Barry     LeSieur's          license    to

practice law.

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

of this order, Barry LeSieur shall pay to the Office of Lawyer

Regulation the costs of this proceeding.
      ¶48     IT IS FURTHER ORDERED that Barry LeSieur 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.




                                           26
    No.   2007AP2763-D




1
