                                                              2014 WI 7

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2011AP2961-D
COMPLETE TITLE:        In the Matter of Disciplinary Proceedings
                       Against Randy J. Netzer, Attorney at Law:

                       Office of Lawyer Regulation,
                                 Complainant-Respondent,
                            v.
                       Randy J. Netzer,
                                 Respondent-Appellant.



                           DISCIPLINARY PROCEEDINGS AGAINST NETZER

OPINION FILED:         January 29, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         October 22, 2013

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:          ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:

ATTORNEYS:
       For the respondent-appellant, there were briefs and an oral
argument by Randy J. Netzer, pro se.


       For the Office of Lawyer Regulation, there was a brief by
Matthew F. Anich, Ashland, and an oral argument by Matthew F.
Anich.
                                                                   2014 WI 7
                                                         NOTICE
                                           This opinion is subject to further
                                           editing and modification.   The final
                                           version will appear in the bound
                                           volume of the official reports.
No.    2011AP2961-D


STATE OF WISCONSIN                     :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Randy J. Netzer, Attorney at Law:

Office of Lawyer Regulation,                                  FILED
            Complainant-Respondent,
                                                         JAN 29, 2014
      v.
                                                            Diane M. Fremgen
                                                         Clerk of Supreme Court
Randy J. Netzer,

            Respondent-Appellant.




      ATTORNEY   disciplinary   proceeding.       Attorney's         license

suspended.



      ¶1    PER CURIAM.   Attorney Randy J. Netzer has appealed a

referee's report finding that he violated SCRs 20:8.4(b) and

21.15(5).    The referee recommends that Attorney Netzer's license

to practice law in Wisconsin be suspended for 90 days, that

various conditions be imposed on his license to practice law,

and that he pay the full costs of the proceeding, which are

$9,222.21 as of November 5, 2013.
                                                               No.   2011AP2961-D



       ¶2     We conclude that the referee's findings of fact are

supported by satisfactory and convincing evidence.                   We further

determine that a 90-day suspension of Attorney Netzer's license

to practice law is an appropriate sanction for his misconduct,

and we conclude that conditions should be imposed on Attorney

Netzer's reinstatement and that he be required to pay the full

costs of the proceeding.

       ¶3     Attorney   Netzer   was       admitted    to   practice   law   in

Wisconsin in 1984.        He says he has not practiced law to earn a

living since 1987, although his state bar membership remains

active.

       ¶4     In 2006, Attorney Netzer received a private reprimand

for violating SCR 20:8.4(b) by committing acts resulting in his

conviction for one count of misdemeanor stalking and one count

of violating a harassment injunction.

       ¶5     In March 2010 Attorney Netzer was charged with one

count of felony stalking—previous conviction, in violation of

Wis.       Stat.   § 940.32(2m)(a),     and    two     misdemeanor   counts   of
violating a harassment injunction, in violation of Wis. Stat.

§ 813.125(4) and (7).          The person allegedly involved in the

incidents was Attorney Netzer's former girlfriend, K.M.1




       1
       The stipulation of facts and referee's report refer to
Attorney Netzer's former girlfriend as "C.M." However, we note
the OLR's complaint, the underlying criminal complaint filed
against Attorney Netzer, and other documents of record state the
former girlfriend's name is "K.M." Therefore, "K.M." is used to
identify the former girlfriend throughout this opinion.

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                                                                        No.   2011AP2961-D



       ¶6      On September 4, 2009, after an approximately 14-month

relationship, K.M. sent Attorney Netzer an e-mail saying, "It is

over."      K.M. told Attorney Netzer not to contact her in any way

and not to send gifts, flowers, or attempt to talk to her in

person.

       ¶7      On September 5, 2009, Attorney Netzer wrote K.M. an e-

mail saying he wanted to speak to her face-to-face one more

time.       On   September     11,    2009,        Attorney       Netzer    sent   K.M.   a

postcard from New York.             K.M. rejected Attorney Netzer's further

attempts at contact.

       ¶8      On October 4, 2009, K.M. went to the City of La Crosse

police department and filed a complaint in reference to Attorney

Netzer possibly stalking her.                     K.M. said she had advised her

employer about her concerns regarding Attorney Netzer, and the

employer set up surveillance cameras around her workplace.                              K.M.

told police she had made drastic lifestyle changes because of

Attorney Netzer not complying with her demand that he stay away

from    her.      A     City   of    La   Crosse         police    officer    telephoned
Attorney Netzer, advised him about the complaint, and said if

his     conduct       continued,     stalking            charges    would     be   filed.

Attorney Netzer acknowledged it was wrong to stalk someone and

he promised not to stalk K.M.

       ¶9      On October 10, 2009, Onalaska police responded to a

call about a suspicious dark blue Kia Sportage registered to

Attorney       Netzer    parked      on   a       road    in     proximity    to   K.M.'s

condominium.          Police   located        Attorney         Netzer   running    in   the
vicinity, and they arrested him.
                                              3
                                                                          No.   2011AP2961-D



       ¶10   On   November        6,    2009,       a    harassment       injunction     was

issued against Attorney Netzer.                 The circuit court affirmed the

injunction following a de novo hearing on November 19, 2009.

The injunction was to remain in effect until November 6, 2013.

Attorney Netzer was required to have no contact of any kind with

K.M.

       ¶11   On   December        31,    2009,          Attorney      Netzer    placed    a

"Happy/Sunshine"        ad   in    the    La    Crosse         Tribune,     saying,    "Dear

Muffinz, Thanks for a great 2008.                       Please forgive me for 2009.

Happy New Year 2010.            Love Forever, Koala."                 K.M. and Attorney

Netzer had exchanged these nicknames during their relationship.

       ¶12   On January 24, 2010, Attorney Netzer placed an ad in

the La Crosse Tribune wishing K.M.'s mother a happy birthday.

The ad was signed with the names of K.M.'s cats.

       ¶13   On February 14, 2010, Attorney Netzer placed another

"Happy/Sunshine" advertisement in the La Crosse Tribune telling

K.M., "I may no longer be in your heart, but you will always be

forever the only one in mine.              For you to be happy is all I ever
have   wanted     and    that     is    what    I       wish    for   you    now.     HAPPY

VALENTINES DAY.         Love, Randy and Kitties. . . ."

       ¶14   Attorney Netzer placed each of the newspaper ads by

calling a telephone number for the Coulee News.                             He claimed he

thought he was placing the ads in the Coulee News newspaper but

the ads were published in the La Crosse Tribune by mistake.                               He

said he did not realize the mistake until after the ads had been

published in the La Crosse newspaper.


                                            4
                                                                      No.     2011AP2961-D



    ¶15     On March 8, 2010, Attorney Netzer was arrested for

violating       the    November    6,     2009    harassment       injunction.         The

following day he was criminally charged.                      As a condition of a

$3,000 cash bond, he was required to have no contact with K.M.,

her residence, or her workplace.                  He was fitted with a Global

Positioning System (GPS) to ensure he did not travel to any

exclusion zones.           He was purportedly told he was excluded from

the Valley View Mall.

    ¶16     On    April     2,    2010,    the    OLR    sent      Attorney    Netzer    a

notice     of     formal     investigation         requesting        a      response    to

allegations that his conduct regarding K.M. that resulted in

criminal charges may have violated the rules of professional

conduct.

    ¶17     A GPS report showed Attorney Netzer had entered the

Valley View Mall exclusion zone on four occasions on April 19,

2010.    When Attorney Netzer was arrested for having entered the

Valley View Mall exclusion zone, he reported he did not know how

extensive the exclusion zone was.
    ¶18     On April 22, 2010, a second criminal complaint was

filed against Attorney Netzer alleging one count of felony bail

jumping,     in       violation      of    Wis.     Stat.     §§ 946.49(1)(b)          and

939.50(3)(h), for violating the terms of his release.

    ¶19     Attorney        Netzer      responded       to   the    OLR's     notice    of

formal investigation on April 24, 2010, and indicated he was

asserting        his     Fifth     Amendment        privilege         against      self-

incrimination.         Because the criminal cases were ongoing, the OLR
placed its investigation on hold.
                                            5
                                                                         No.    2011AP2961-D



       ¶20    On April 20, 2011, Attorney Netzer pled guilty to two

misdemeanor counts of violating a harassment injunction.                                  The

convictions were based on the two newspaper advertisements taken

out on December 31, 2009, and February 14, 2010, which violated

the    no-contact      injunction      issued          on   November    6,     2009.      The

felony counts of stalking and the felony count of bail jumping

in the companion case were dismissed but read-in for sentencing

purposes.        The       circuit    court       withheld      sentence       and     placed

Attorney      Netzer    on    two    years'       probation,     with     100    hours     of

community service, a psychological evaluation, and an order that

he have no contact with K.M.

       ¶21    On April 27, 2011, Attorney Netzer wrote to the OLR

and indicated he had pled guilty to two misdemeanor counts of

violating an injunction order and that the felony counts of

stalking and bail jumping had been dismissed.                          Attorney Netzer's

letter notifying the OLR of his convictions was sent two days

past    the    deadline       established         in    the    supreme       court     rules.

Attorney Netzer also did not provide timely written notice to
the clerk of this court regarding his convictions, although he

did notify the clerk about two weeks late.

       ¶22    The    OLR    reopened    its       investigative        matter    and     sent

Attorney Netzer a supplemental request for information about his

conviction.         In his response, Attorney Netzer claimed he did not

intend to violate the harassment injunction.                            He admitted he

sent the "Happy/Sunshine" ads to K.M., and he acknowledged he

did not send timely notice of his convictions to the OLR and the
clerk of this court.                 He also said his convictions were on
                                              6
                                                     No.   2011AP2961-D



appeal.    He claimed he never agreed to have the stalking and

felony bail jumping charges read-in at sentencing.

    ¶23    On July 18, 2011, Attorney Netzer filed a motion to

modify his sentence or, in the alternative, withdraw his plea.

Attorney Netzer claimed that while he knew the felony charges of

stalking and bail jumping were dismissed, he did not know they

were being read-in and considered by the court at the sentencing

hearing.     By order dated February 12, 2012, the circuit court

dismissed the felony stalking and bail jumping charges without

prejudice.

    ¶24    The OLR filed a complaint against Attorney Netzer on

December 27, 2011, alleging two counts of misconduct:

         [COUNT ONE] By engaging in the conduct leading to
    and by pleading guilty to two misdemeanor counts of
    violating a harassment injunction . . . and also with
    the felony charges of stalking . . . and felony bail
    jumping . . . being    read-in   whereby    they   were
    dismissed but were considered by the Court for
    purposes of sentencing, Netzer violated SCR 20:8.4(b).2

         [COUNT TWO] By failing to notify the Office of
    Lawyer Regulation and the Clerk of the Supreme Court
    in writing within five (5) days after being found
    guilty or convicted of crimes, Netzer violated
    SCR 21.15(5),3 actionable via SCR 20:8.4(f).4

    2
       SCR 20:8.4(b) states 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; . . . ."
    3
        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
                                 7
                                                              No.     2011AP2961-D



    ¶25     Allan Beatty was appointed referee.             In August 2012

the OLR and Attorney Netzer entered into a stipulation of facts.

The parties agreed that the referee, without hearing or notice,

could   adopt    various    paragraphs     in    the   stipulation        as   his

findings of fact and conclusions of law.                 The parties filed

briefs with the referee regarding the appropriate sanction.

    ¶26     The referee issued his report and recommendation on

November 1, 2012.        The referee adopted verbatim the content in

the factual paragraphs of the parties' stipulation.                  The referee

concluded that the allegations in the OLR's complaint had been

proven by the requisite burden of proof.                 Specifically, the

referee found that Attorney Netzer violated SCRs 20:8.4(b) and

21.15(5).

    ¶27     The referee recommended that Attorney Netzer's license

be suspended for 90 days and that he pay the full costs of the

proceeding      within   one   year.        In    addition,         the   referee

recommended that the following conditions be placed on Attorney

Netzer's license to practice law:



    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.
    4
       SCR 20:8.4(f) provides 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; . . . ."

                                       8
                                                       No.   2011AP2961-D


         1.   Cooperate with  an   OLR  SCR  21.03(9)(b)
    referral to the State of Wisconsin Lawyer Assistance
    Program (WisLAP);

         2.   Undergo a psychological evaluation             by   a
    professional selected by the WisLAP Coordinator;

         3.   Sign reciprocal releases of confidentiality
    complying   with    the   federal   Health   Insurance
    Portability and Accountability Act and all other
    applicable federal and state laws for each treatment
    provider who is providing or has provided mental
    health related treatment or services during and since
    2009, so that such treatment providers may share
    pertinent information with the WisLAP Coordinator. In
    addition, the releases shall also authorize disclosure
    to   the   professional   selected  to   conduct   the
    psychological evaluation and to the Office of Lawyer
    Regulation;

         4.  Comply with all treatment recommendations in
    the report of the psychological evaluation ordered
    above;

         5.    Submit to monitoring by a person selected by
    the   WisLAP    Coordinator;   to   cooperate   with   the
    monitoring    conditions   and    reporting   requirements
    determined    to    be   appropriate    by    the   WisLAP
    Coordinator; and to comply with all obligations under
    the WisLAP Monitoring Program Policies; all for a
    period not to exceed five years from the date of the
    Court's order of discipline;

         6.   Pay the costs associated with his compliance
    with these conditions. Neither OLR nor WisLAP will be
    responsible for any such costs.
    ¶28   The    referee   said   he   has   serious   concerns   about

Attorney Netzer's fitness to practice law and that the nature of

the offenses for which he was convicted, arising out of his

relationships with two separate women, raise questions about his

mental health.     The referee    noted that when Attorney Netzer
entered his pleas to the two misdemeanor counts of violating a


                                   9
                                                                 No.     2011AP2961-D



harassment        injunction,   he    participated     in    a    thorough       plea

colloquy which covered the two read-in offenses for stalking and

bail    jumping.         The    referee      noted    that     Attorney      Netzer

subsequently       was   successful    in    getting    both     read-in     counts

dismissed so no admission to the facts forming the bases for

those counts may be considered by a court.                     The referee said

that   as    an    attorney,    Attorney     Netzer    should     have     had   the

knowledge necessary to understand what a read-in was at his plea

and sentencing hearing.

       ¶29   The referee noted that in his sanctions brief Attorney

Netzer said that he wants to take full responsibility for his

actions, but there appears to be a pattern to the contrary given

that Attorney Netzer is now trying to distance himself from the

stipulation of facts that he signed.            The referee said:

       As his submissions in this disciplinary matter
       demonstrate, Attorney Netzer has gone to great length
       to minimize his criminal convictions and his Supreme
       Court Rule violations.        There is a delusional
       dimension   to  Attorney   Netzer's  explanations  and
       statements in this matter that underscore the need for
       a psychological evaluation and subsequent progress in
       treatment before Attorney Netzer will have the
       psychological fitness to practice law.
       ¶30   Attorney     Netzer      appealed,      raising     the      following

issues:

            1.   Was it premature for the Office of Lawyer
       Regulation (OLR) to prosecute this case before the
       case was resolved at the trial court level?

            2.   Was the stipulation of facts drafted by OLR
       in this case appropriate?



                                        10
                                                                           No.      2011AP2961-D


            3.   Was the Report and Recommendation of Referee
       in this case faulty or defective?

            4.    If the stipulation of facts filed in this
       case is deemed acceptable and if the Report and
       Recommendation of Referee is not deemed faulty or
       defective,      is    the      recommended   sanction
       disproportionate or excessive?
       ¶31    Attorney Netzer asserts it was premature for the OLR

to    prosecute       this       case    before       his     criminal     case     was     fully

resolved at the trial court level, which he says did not occur

until February 2012 when the circuit court dismissed without

prejudice the stalking and bail jumping offenses.

       ¶32    Attorney Netzer also argues that the stipulation of

facts,       which     he        says    was     drafted       by    the     OLR,     was     not

"appropriate."              He    acknowledges         that     at   least    some     of    the

paragraphs in the stipulation of facts do "have an element of

truth," but he says the paragraphs "fail to tell the rest of the

story."

       ¶33    Attorney Netzer argues that the referee's report and

recommendation was "faulty or defective."                             He complains about

the    representation             provided       by     the    attorney       he    hired      to

represent him in his criminal case.

       ¶34    Attorney Netzer says if the stipulation of facts filed

in this case is deemed acceptable and if the referee's report

and    recommendation             is    not     deemed      faulty    or   defective,         the

recommended          90-day        sanction       is     still       disproportionate          or

excessive.           Attorney          Netzer    says    he     is   remorseful       for    his

actions and wishes they could be undone.                             He says he has been




                                                 11
                                                                          No.        2011AP2961-D



undergoing counseling and feels that is a satisfactory way to

deal with the issues underlying this case.

    ¶35      Attorney Netzer also requests that the court either

waive the costs of this action or at least reduce them.

    ¶36      The       OLR    argues      it    did        not   prematurely          file       its

complaint given that the complaint was filed approximately eight

months after Attorney Netzer had informed the OLR about his

criminal convictions.                The OLR says Attorney Netzer cites no

authority for the proposition that the OLR is prohibited from

commencing a disciplinary proceeding against an attorney when a

criminal     case       has        not   been    fully       resolved,         and     it    says

prohibiting       it    from       proceeding        with    a     disciplinary        case      as

Attorney     Netzer          suggests     would       be     contrary     to     the        public

interest and the good of the profession.

    ¶37      The OLR goes on to say an attorney does not have to be

convicted    of     a   crime        before     being      found    to   have    violated         a

supreme court rule.                 The OLR also says that having failed to

make a motion or objection to the referee as to the date the
disciplinary proceeding was commenced, Attorney Netzer should be

found to have forfeited or waived his right to raise that issue

on appeal.

    ¶38      The OLR argues that the language in the stipulation of

facts   is   binding          on    Attorney     Netzer.           The   OLR    says        as   an

experienced attorney, Attorney Netzer knew he was not required

to enter into a stipulation of facts and that he had the right

to a full hearing before a referee.                        The OLR says when Attorney
Netzer's sanctions brief backed away from the stipulation of
                                                12
                                                                   No.    2011AP2961-D



facts he had previously signed, the OLR responded by saying that

if   Attorney      Netzer     was    having    second        thoughts     about   the

stipulation, his remedy was to move the referee to relieve him

from the stipulation of facts and to schedule a hearing on the

contested issues.         The OLR points out that Attorney Netzer never

did that.

     ¶39    The OLR says the findings of fact in the referee's

report adopt verbatim the contents of the stipulation of facts

signed by the parties.         It says Attorney Netzer fails to explain

how any of the referee's findings of fact could possibly be

erroneous.

     ¶40    The OLR also asserts that the referee's recommended

sanction is appropriate.             It points out that in 2006, Attorney

Netzer     was     privately    reprimanded       for        misconduct    that    is

"disturbingly similar to the facts in the current disciplinary

proceeding."          The OLR says while Attorney Netzer may feel the

counseling       he     has   been    undergoing        is     satisfactory,      the

conditions on his license recommended by the referee are more
likely to achieve the desired result.

     ¶41    As to the issue of costs, the OLR points out that this

court    customarily      assesses    full    costs    against     the    respondent

attorney,    and      unsupported    statements       that    an   attorney   cannot

afford to pay costs are not a sufficient basis on which to

excuse the attorney from payment.             The OLR also notes that if an

attorney cannot pay the full costs immediately, an agreement may

be reached to enable the attorney to pay the costs over time.


                                         13
                                                                   No.    2011AP2961-D



       ¶42    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

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                          The

court may impose whatever sanction it sees fit regardless of the

referee's recommendation.            See In re Disciplinary Proceedings

Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶43    The referee's findings of fact have not been shown to

be clearly erroneous, and we adopt them.                      We also adopt the

conclusions of law that flow from those findings of fact.                            We

specifically reject Attorney Netzer's claim that the OLR filed

its complaint prematurely before the criminal case was resolved

in the trial court.

       ¶44    Attorney    Netzer    pled    guilty     to    the   two   misdemeanor

counts in April of 2011.              The OLR's complaint was not filed

until eight months later.             At that time the only proceeding

pending in the circuit court was Attorney Netzer's motion to

modify his sentence or, in the alternative, withdraw his plea.
In February of 2012, approximately six weeks after the filing of

the   OLR's    complaint,    the    circuit       court     dismissed    the    felony

stalking and bail jumping charges——which had been dismissed at

the time the plea was entered.

       ¶45    Attorney Netzer has failed to cite any authority for

his claim that the OLR should have been required to wait until

after the circuit court had ruled on his postconviction motion

before filing its complaint, nor has he explained how the result
of    this    proceeding    would    have       been   different    if    the   OLR's
                                           14
                                                                        No.     2011AP2961-D



complaint     had    been    filed      in    February       of    2012       rather      than

December of 2011.          In addition, as the OLR points out, Attorney

Netzer never raised this issue before the referee and could be

deemed to have forfeited or waived his right to raise the issue

on appeal.

    ¶46      We also reject Attorney Netzer's criticisms about and

attempt to repudiate the stipulation of facts which he signed in

August of 2012.       Attorney Netzer was not required to enter into

a stipulation of facts but chose, presumably at least in part,

to simplify the proceeding and reduce the ultimate costs.                                  As

the OLR points out, if Attorney Netzer later had second thoughts

about the stipulation of facts, he could have moved the referee

to relieve him from the stipulation of facts and could have

asked for a full evidentiary hearing on the contested issues.

Since   he   chose    not    to    do    so,       he   should     be     bound      by   the

stipulation of facts.            Having accepted the findings of fact and

conclusions of law set forth in the referee's report, we reject

Attorney Netzer's claim that the referee's report was "faulty or
defective."

    ¶47      Turning to the appropriate sanction, we note that the

conduct at issue here is strikingly similar to the conduct that

resulted in Attorney Netzer's 2006 private reprimand.                           As in the

previous case, Attorney Netzer tries to minimize his conduct,

claiming     he    never    intended      his      actions    to    cause        K.M.     any

distress,    and    that    in    fact       all   he   cared      about       was   K.M.'s

happiness and well-being.            As in the 2006 case, Attorney Netzer
again argues that his criminal attorney forced him into entering
                                             15
                                                                  No.     2011AP2961-D



pleas, that he is very sorry for his actions, and that he is

entitled to this court's leniency.

       ¶48     We deem the SCR 21.15(5) violation is de minimus since

Attorney Netzer did notify the OLR and the clerk of this court

about    his    conviction,   albeit      the      notification     was     slightly

tardy.

       ¶49     The SCR 20:8.4(b) violation is not de minimus.                    This

court found in 2006 that Attorney Netzer's two prior misdemeanor

convictions,       which   arose    out      his     violating     a      harassment

injunction filed by a previous girlfriend, reflected adversely

upon    his    trustworthiness     or   fitness       as   a   lawyer      in   other

respects.        The same analysis holds true in this case.                      This

court has long adhered to the concept of progressive discipline

in attorney regulatory cases.           It does not appear that the 2006

private reprimand had the impact we intended on Attorney Netzer

since he repeated the same conduct here.                   For that reason, we

agree with the referee that a 90-day suspension of Attorney

Netzer's license to practice law in Wisconsin is appropriate.
       ¶50     We also agree with the referee that it is appropriate

to impose certain conditions in this case.                     While the referee

recommended various conditions be placed on Attorney Netzer's

license to practice law, we find it more appropriate to impose

conditions on the reinstatement of Attorney Netzer's license in

order to ensure that the conduct that occurred in this case, as

well as the conduct underlying the 2006 private reprimand, does

not recur.


                                        16
                                                                          No.      2011AP2961-D



       ¶51   We note that in the criminal case, the circuit court

ordered Attorney Netzer to undergo a psychological evaluation.

We   find    it    appropriate           to    order   that   the    reinstatement          of

Attorney Netzer's license to practice law shall be conditioned

upon   his   obtaining         a    mental      health     evaluation         in   which    the

evaluator     states,          to    a    reasonable       degree        of     professional

certainty, that Attorney Netzer is capable of discharging the

duties of a person licensed to practice law in this state.                                   We

further conclude that as a condition of reinstatement, Attorney

Netzer   must      be    required        to     execute    medical       record      releases

authorizing the OLR to review his medical records for a period

of three years.           Once Attorney Netzer has complied with these

conditions        and    the    other         conditions    generally         required     for

reinstatement after a suspension of less than six months, his

license can be reinstated.

       ¶52   Finally, we find it appropriate to impose the full

costs of the proceeding upon Attorney Netzer.                        It is the court's

general policy upon a finding of misconduct to impose all costs
on the respondent attorney.                   See SCR 22.24(1m).          Since this case

presents     no     extraordinary              circumstances,       we    conclude         that

Attorney Netzer should be required to pay the full costs of this

proceeding.

       ¶53   IT IS ORDERED that the license of Randy J. Netzer to

practice law in Wisconsin is suspended for a period of 90 days,

effective March 5, 2014.

       ¶54   IT IS FURTHER ORDERED that, as a condition of the
reinstatement       of    his       license      to    practice     law       in   Wisconsin,
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Randy J. Netzer shall take the following actions:                         (1) obtain a

satisfactory mental health evaluation, at his own expense, in

which   the    evaluator     states,        to    a     reasonable         degree     of

professional    certainty,     that    Randy      J.    Netzer       is    capable    of

discharging the duties of a person licensed to practice law in

this state; (2) provide a copy of that evaluation to the Office

of Lawyer Regulation; and (3) execute medical record releases

authorizing the Office of Lawyer Regulation for a period of

three years to review his medical and mental health records and

to speak with medical or mental health providers.

    ¶55   IT    IS   FURTHER   ORDERED       that       Randy   J.    Netzer        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.

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

of this order, Randy J. Netzer shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $9,222.21, as

of November 5, 2013.
    ¶57   IT    IS   FURTHER     ORDERED         that     compliance         with    all

conditions of this order is required for reinstatement.                               See

SCR 22.28(2).




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    ¶58     SHIRLEY S. ABRAHAMSON, C.J.                    (dissenting).              Supreme

court     rule       21.16(1m)(f)       authorizes        this    court        to     impose

conditions on an attorney seeking license reinstatement.                                 The

conditions should be stated in such a way that they can be

easily understood by the respondent attorney and the OLR and

easily administered.

    ¶59     I conclude, however, that a six-month suspension with

conditions       should      be    imposed    in    the   present       case.         Such   a

sanction is not only appropriate under the circumstances of the

present case but has the advantage that reinstatement must be by

order of this court after prescribed proceedings, not merely by

affidavit       of    the    attorney    of       compliance     and     the    director's

notification of compliance.             See SCR 22.28(3), 22.29-22.33.

    ¶60     Before the court will reinstate an attorney after a

suspension of six months or more, the attorney must show the

court     that       he     "can   safely     be     recommended         to     the    legal

profession, the courts and the public as a person fit to be

consulted by others and to represent them and otherwise act in
matters of trust and confidence and in general to aid in the

administration of justice as a member of the bar and as an

officer    of    the      courts."      SCR       22.29(4)(g).         Court    review       of

reinstatement of the attorney under this standard is, in my

opinion, important in the present case.

    ¶61     For the reasons set forth, I dissent.

    ¶62     I        am   authorized    to    state       that   Justice        ANN    WALSH

BRADLEY joins this dissent.



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