                                                            2016 WI 55

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2007AP776-D
COMPLETE TITLE:         In the Matter of Medical Incapacity Proceedings
                        Against Godfrey Y. Muwonge, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Godfrey Y. Muwonge,
                                  Respondent-Appellant.

                         MEDICAL INCAPACITY PROCEEDINGS AGAINST MUWONGE

OPINION FILED:          July 1, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           ABRAHAMSON, J. concurs (Opinion filed).
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                         2016 WI 55
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2007AP776-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Medical Incapacity Proceedings
Against Godfrey Y. Muwonge, Attorney at Law:



Office of Lawyer Regulation,                                          FILED
            Complainant-Respondent,
                                                                  JUL 1, 2016

      v.                                                            Diane M. Fremgen
                                                                 Clerk of Supreme Court

Godfrey Y. Muwonge,

            Respondent-Appellant.




      ATTORNEY     disciplinary      proceeding.         Attorney's          license

reinstated, with conditions.


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

Dennis J. Flynn, recommending that the court reinstate, with

conditions, Attorney Godfrey Y. Muwonge's license to practice

law   in   Wisconsin.   After    careful   consideration           we    adopt     the

referee's recommendation.         We agree that Attorney Muwonge met

his burden under Supreme Court Rule (SCR) 22.36(6) to show by
                                                                            No.        2007AP776-D


clear,      satisfactory,        and       convincing            evidence     that        he    is

currently fit to resume the practice of law, with conditions.

Accordingly, we grant his reinstatement petition. We impose the

full   costs      of    this     proceeding,           which      are   $8,118.32         as    of

April 27, 2016.            We also impose certain conditions on Attorney

Muwonge's license to practice law, as set forth herein.

       ¶2    Attorney        Muwonge       was       admitted      to   practice         law    in

Wisconsin      in      1997.      He   practiced            immigration          law     in    the

Milwaukee area.            In April 2007,            the    OLR filed a disciplinary

complaint against Muwonge, alleging 43 counts of misconduct and

seeking the revocation of Muwonge's law license. Ultimately, it

became apparent that Attorney Muwonge suffered from a medical

incapacity and his license was indefinitely suspended.

       ¶3    Attorney Muwonge's early life experiences are highly

relevant to his chosen area of legal practice and also provide

context for his medical incapacity.                        As a young man in Uganda,

Muwonge     was     arrested,     interrogated,             and    tortured       due    to    his

perceived     involvement        in    a    resistance            group.    He    sought       and

eventually received asylum in the United States. Shortly after

arriving in Wisconsin, he matriculated at Marquette University,

earning an undergraduate degree in journalism in 1994 and a law

degree in 1997. Given his own experiences, he chose to practice

immigration         law.    He   married         and       has    children.       Personally,

however,     he      struggled     with      post          traumatic       stress       disorder

                                                 2
                                                                          No.     2007AP776-D


(PTSD),     alcoholism,           and   chemical        addictions      which     adversely

affected his ability to practice law, leading to the 2007 OLR

complaint.

      ¶4      When    the    disciplinary            complaint    was    filed,      Muwonge

initially opted to file a petition for voluntary revocation of

his   law     license       and    a    referee        recommended      we    accept     that

petition      and    revoke        Muwonge's         law     license.        Muwonge     then

appealed,     asking     this       court    to       consider    his   medical      issues.

Following additional proceedings, on April 9, 2008, this court

temporarily suspended Muwonge's license pursuant to SCR 22.21.1

      ¶5      On September 29, 2008, the OLR and Muwonge stipulated

that Muwonge had a medical incapacity that precluded him from

defending against the disciplinary charges. On October 22, 2008,

a   referee    concurred,          concluding         that    Muwonge     had    a   medical

incapacity due to PTSD, alcoholism, chemical addictions, social

phobia,     suicide     ideation,        and     migraine       headaches,      making    his

defense of the disciplinary proceeding impossible.                              The referee

recommended we abate the pending disciplinary proceedings and

suspend     Muwonge's       license.        On       December    23,    2008,    the   court


      1
       SCR 22.21 provides: "(1) The supreme court, on its own
motion, upon the motion of the director, or upon the motion of a
special investigator acting under SCR 22.25, may suspend
temporarily an attorney's license to practice law where it
appears that the attorney's continued practice of law poses a
threat to the interests of the public and the administration of
justice."


                                                 3
                                                          No.   2007AP776-D


issued an order adopting the referee's findings and conclusions.

We   suspended    Muwonge's   license   to   practice   law   indefinitely

pursuant to SCR 22.16(4)2 and SCR 22.36.3


      2
          SCR 22.16(4) provides:

      (4)(a) If in the course of the proceeding the
      respondent claims to have a medical incapacity that
      makes the defense of the proceedings impossible, the
      referee shall conduct a hearing and make findings
      concerning whether a medical incapacity makes defense
      of the proceeding impossible.   The referee may order
      the examination of the respondent by qualified medical
      or psychological experts.

      (b) All papers, files, transcripts, communications,
      and proceedings on the issue of medical incapacity
      shall be confidential and shall remain confidential
      until the supreme court has issued an order suspending
      the attorney's license to practice law, or has
      otherwise authorized disclosure.

      (c)   If the referee finds no medical incapacity that
      would make the defense of the proceeding impossible,
      the referee shall proceed with the misconduct action.

      (d)   If the referee finds that a medical incapacity
      makes the defense of the proceeding impossible, the
      referee shall file a report promptly with the supreme
      court.     If the court disapproves the referee's
      finding, the court shall direct the referee to proceed
      with the misconduct action. If the court approves the
      referee's   finding,  the   court   shall  abate   the
      misconduct proceeding and suspend the respondent's
      license to practice law for medical incapacity until
      the court orders reinstatement of the attorney's
      license under SCR 22.36.      Upon reinstatement, the
      court shall direct the referee to proceed with the
      misconduct action.
      3
          SCR 22.36 provides:

      (1) An attorney whose license to practice law is
      suspended or whose practice of law is subject to
                                                 (continued)
                                    4
                                             No.   2007AP776-D




conditions for medical incapacity may petition the
supreme court at any time for reinstatement of the
license or the removal of conditions.

(2) The supreme court shall refer the petition to the
director for investigation to determine whether the
attorney's medical incapacity has been removed.

(3) The filing of a petition for reinstatement
constitutes a waiver of any privilege existing between
the petitioner and any psychiatrist, psychologist,
physician or other health care provider that has
provided care to the attorney.    The petitioner shall
disclose the name of every psychiatrist, psychologist,
physician and other health care provider that has
provided care following suspension or the imposition
of conditions and shall furnish the director written
consent to the release of information and records
requested by the medical experts appointed by the
director or a referee.

(4) The director may direct a medical or psychological
examination of the petitioner by such qualified
experts as the director designates and may direct that
the expense of the examination be paid by the
petitioner.

(5)   Following the investigation, the petition shall
be submitted to a referee selected by the clerk of the
supreme court, based on geographic proximity to the
respondent's place of residence, and appointed by the
chief justice or, in his or her absence, the senior
justice.

(6)    The petitioner has the burden of showing by
clear, satisfactory and convincing evidence that the
medical incapacity has been removed and that the
petitioner is fit to resume the practice of law, with
or without conditions.

(7) The referee shall hold a hearing on the petition,
if necessary, and file a report and recommendation in
the supreme court.

(8) If an attorney whose license to practice law has
been suspended for medical incapacity pursuant to SCR
                                               (continued)
                          5
                                                                          No.     2007AP776-D


       ¶6     In the following years, Muwonge sought and obtained

treatment for his mental health and substance abuse issues.

       ¶7     On    June    29,      2015,   Muwonge     filed   this      petition      for

reinstatement.           Referee     Flynn    was    appointed      and    conducted      an

evidentiary hearing in March 2016.                      Referee Flynn issued his

report and recommendation on April 11, 2016.

       ¶8     Reinstatement           from     a      determination          of      medical

incapacity is governed by SCR 22.36. Under SCR 22.36(6) Muwonge

has the burden to prove by clear, satisfactory and convincing

evidence that the medical incapacity has been removed and that

he   is     fit    to    resume      the   practice     of   law,     with      or   without

conditions.

       ¶9     The referee first considered whether Attorney Muwonge

has met his burden of proving that his medical incapacity has

been      removed.        The     record     includes    favorable        opinions      from

Muwonge's medical and mental health treatment providers.                                 The

referee observed that those who have been involved in Muwonge's

treatment         view   him    as   "totally       committed    to   maintaining        his

recovery status." His treating psychiatrist is unequivocal in

stating that Muwonge is fit to return to the practice of law,


       22.35 is thereafter judicially declared to be no
       longer in the condition previously determined under
       Wis. Stat. chapter 51 or chapter 880 (1997-98), the
       supreme   court  may   direct   reinstatement   of the
       attorney's license, with or without conditions.


                                              6
                                                             No.    2007AP776-D


but recommends that he be supervised by another attorney and

limit his work to 40 hours per week. Another therapist concurs,

stating   that   Muwonge   has    regained   control   of    his    life   and

effectively      manages    his      psychological      issues        through

psychotherapy and medication.

    ¶10    In addition,    Muwonge joined Alcoholics Anonymous in

May 2013, attends AA meetings at least three times a week; his

sponsor    offered     a    positive      reference.        Linda     Albert,

Administrator of the State Bar of Wisconsin Lawyer Assistance

Program (WisLAP) also provided a written statement and appeared

at the evidentiary hearing. Ms. Albert reported that under her

guidance and monitoring, Muwonge now voluntarily participates in

the WisLAP monitoring program under a formal written contract.

Ms. Albert testified that it is her opinion that Muwonge is in

full compliance with the WisLAP program and will likely continue

to be in compliance in the future.            She recommended that, if

Muwonge is reinstated, he should be required to remain in the

WisLAP program for at least two years.

    ¶11    Demonstrating    that    the   medical   incapacity      has    been

removed is not enough to warrant reinstatement.             With respect to

the "fitness" requirement in a medical incapacity reinstatement,

we have stated:

    The term "fit," as used in 22.36(6) with the phrase
    "to practice law," encompasses more than the removal
    of a medical incapacity or being in a physically,

                                     7
                                                                     No.        2007AP776-D


    mentally, or morally sound state. The term "fit" is
    sufficiently broad to imply a state of preparedness to
    render competent legal services; that is, to be
    prepared to provide the measure of expertise to ensure
    the attorney may be safely recommended to the
    community as a person to be consulted by and to
    represent others in legal matters.

In re Medical Incapacity Proceedings Against Schlieve, 2010 WI

22, ¶24, 323 Wis. 2d 654 780 N.W.2d 516 (2010). As the referee

correctly observed, Muwonge must demonstrate that he has reached

a state of preparedness to render competent legal services and

that he can be safely recommended to the community as a person

to be consulted by and represent others.

    ¶12     To assess this, the referee addressed certain concerns

identified by the OLR during this proceeding.

    ¶13     First,      Muwonge     intends     to      resume      an     immigration

practice.   This     is   potentially     concerning          because      it    was,   in

part, his immigration practice that triggered his PTSD to the

point of incapacitation. More specifically, when faced with his

clients'    immigration        problems       and     the     prospect          of   their

deportation, he would relive his own horrific traumas.

    ¶14     Second, Muwonge has been unemployed since 2008.                           This

is potentially concerning because his ability to handle the day-

to-day   stress    of     a   law   practice        remains    an   open        question.

Muwonge has explained that he did not obtain outside employment

because he was unable to earn a sufficient salary to meet his

family's needs and also provide and pay for appropriate care for

                                          8
                                                                          No.     2007AP776-D


his son, who is severely autistic.                       Accordingly, he served as

the primary caretaker for his children, including his autistic

son, during his suspension.

       ¶15    Notably,    however,        the     OLR    does    not     oppose    Attorney

Muwonge's reinstatement but rather recommends the court impose

certain conditions on his practice intended to address both the

aforementioned        concerns.         Muwonge    acknowledges          that    conditions

are appropriate to address lingering concerns about his fitness

to practice law.

       ¶16    In    addition       to    considering          specific    concerns,      the

referee made general observations about Muwonge's reinstatement

and his fitness to practice law. Muwonge has acknowledged that

he should have sought treatment sooner, but the referee found

that    the        credible    evidence           indicates        that      he     accepts

responsibility for wrongful conduct toward clients during the

period leading up to his suspension in December 2008. Muwonge

submitted     numerous       impressive         and     highly    favorable       character

references in support of his petition.                        He has entered into an

agreement with the OLR to repay the costs assessed against him

relating      to    his   prior         disciplinary       and    medical        incapacity

proceedings, in the amount of $5,586.82.                           He has stated his

intent to make restitution for sums paid to former clients by

the Wisconsin Lawyers' Fund for Client Protection, which total

$47,743.35,        subject    to    his    ability       to    pay.    The      record   also

                                             9
                                                                           No.    2007AP776-D


reflects that in January 2016, the Board of Bar Examiners filed

a letter indicating that Muwonge is currently in compliance with

the Supreme Court's CLE and EPR requirements for reinstatement.

       ¶17       The referee concluded that Muwonge has met his legal

burden      of    establishing      by     credible      evidence         that    is   clear,

satisfactory, and convincing that the medical incapacity noted

in the Supreme Court's December 23, 2008 order, has been removed

and    that      he   is   now    fit    to    resume    the    practice         of    law   in

Wisconsin with conditions. The referee expressed his belief that

Muwonge's        reinstatement       can      be    structured       so    as    to    provide

Muwonge the opportunity to resume the practice of law, while

also       insuring    the      public   is    protected,       by     imposing        certain

conditions on his law practice.

       ¶18       No appeal has been filed, so we consider this matter

pursuant to SCR 22.33(3).4 A referee's findings of fact will not

be    overturned       unless      clearly         erroneous.    In       re    Disciplinary

Proceedings Against Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43,

675    N.W.2d      747.    We    independently        review     the      referee's      legal

conclusion, noting that whether the petitioner has demonstrated

fitness to resume the practice of law presents a legal question


       4
       SCR 22.33(3) provides: "If no appeal is timely filed, the
supreme   court  shall   review  the   referee's  report,  order
reinstatement, with or without conditions, deny reinstatement,
or order the parties to file briefs in the matter."


                                              10
                                                                         No.    2007AP776-D


which we review de novo. In re Disciplinary Proceedings Against

Chavez, 2012 WI 83, ¶ 14, 342 Wis. 2d 419, 816 N.W.2d 265.

      ¶19   We agree with the referee that Attorney Muwonge has

met   his   burden       under   SCR        22.36(6)     to     establish      by   clear,

convincing,       and     satisfactory            evidence        that    his       medical

incapacity is removed and that he is fit to resume the practice

of law. We agree that conditions on Attorney Muwonge's license

to practice law are appropriate to monitor his continued fitness

and to ensure the public is protected.

      ¶20   The   referee,       the    OLR,      and    Attorney    Muwonge        himself

have all proposed various conditions that could be imposed on

Attorney Muwonge's law practice.                  While the level of detail and

the wording of these various proposals differ, fundamentally,

there is consensus.         All concur that continued WisLAP monitoring

is critical, and we agree. All concur that Attorney Muwonge's

practice of law should be monitored by an experienced Wisconsin

attorney,   and     we    agree.       Attorney         Muwonge    has    identified      a

suitable attorney willing to monitor his law practice. Attorney

Harold   Block,    who     has   known        Muwonge     for     over   30     years   and

represented   Muwonge       when       he    sought      immigration      status     after

coming to Wisconsin from Uganda, testified that he was willing

to monitor Muwonge if he is reinstated and the referee supports

his appointment.



                                             11
                                                                   No.      2007AP776-D


      ¶21   The practice monitor will oversee Attorney Muwonge's

practice of law and will seek to ensure that Attorney Muwonge

limits his practice to no more than 40 hours per week until his

treatment provider advises the monitor that this limit is no

longer necessary.

      ¶22   Some of the proposed conditions are typically required

in WisLAP monitoring contracts.                WisLAP requires that attorneys

in the monitoring program execute a written monitoring contract,

the terms of which are           modeled after industry standards for

monitoring    lawyers     and    other    impaired       professionals          and   are

specific and tailored to meet the individual lawyer's needs.

For example, a monitoring agreement may require                        a lawyer to

abstain     from    the   use     of     alcohol     and    all    non-prescribed

controlled    substances,       may    require     attendance     at   a    requisite

number of AA meetings each week, may require daily check-ins,

and may require random drug and/or alcohol testing. Appropriate

monitoring requirements will be set forth in Attorney Muwonge's

monitoring contract with WisLAP so we decline to enumerate them

here.

      ¶23   Other    proposed     conditions        are    designed        to    ensure

appropriate communication among and between Attorney Muwonge,

his   practice     monitor,     WisLAP,    and     the    OLR.    We     impose       the

following conditions on Attorney Muwonge's practice of law:



                                          12
                                                          No.   2007AP776-D


         (1)   WisLAP Monitoring. Continued participation
    in the WisLAP monitoring program for a period of two
    years following the date of this order;

         (2) Law Practice Supervision and Status Reports.
    Supervision of his law practice for a period of two
    years following the date of this order. The court
    appoints Attorney Howard Block to serve as practice
    monitor. If Attorney Block ceases to be available to
    monitor Attorney Muwonge, his successor shall be an
    attorney approved by WisLAP.      The practice monitor
    will provide written reports to the OLR in September
    and December 2016; March, June, September, and
    December 2017; and March and June 2018. To facilitate
    effective practice monitoring, Attorney Muwonge is
    directed   to  provide   his   practice  monitor  with
    permission to speak with all treating mental health
    and substance abuse providers.

         (3)    Treatment and Status Reports. Continued
    treatment   as   recommended  by   Attorney  Muwonge's
    treatment providers to address mental health issues,
    with at least one mental health treatment provider
    sending the OLR a written status report in January and
    July 2017, and in January and July 2018;

         (4)    Financial obligations.   Attorney Muwonge
     shall, if he has not already done so and subject to
     his ability to pay, make arrangements with the
     Wisconsin Lawyers' Fund for Client Protection (Fund)
     for repayment of any sums due to the Fund and shall
     also make arrangements with the OLR for repayment of
     outstanding costs.


    ¶24   We emphasize that Attorney Muwonge's reinstatement is

contingent upon his compliance with these conditions. If the OLR

learns that Attorney Muwonge has failed to comply with these

conditions,   the   OLR   may   petition   this   court   for   immediate

suspension of Attorney Muwonge's license to practice law pending




                                   13
                                                                     No.     2007AP776-D


any further investigation or proceedings that may be necessary

under the circumstances.

       ¶25   The     underlying        disciplinary     proceeding      that     brought

Attorney Muwonge’s medical condition to this court’s attention

in    2008   could    not    be   resolved       at   that   time.   When        Attorney

Muwonge was deemed subject to a medical incapacity, his defense

of the underlying proceeding was not possible and, consistent

with our court rules, the misconduct proceeding was held in

abeyance until such time as the court ordered reinstatement of

his license under SCR 22.26.              See SCR 22.16(4)(d).          That day has

arrived.

       ¶26   Our rules require that, upon reinstatement, “the court

shall direct the referee to proceed with the misconduct action.”

Id.     The court will, consistent with the rules, issue a separate

order     directing     the       referee    to       proceed    with      the    abated

misconduct action.           Nearly a decade has elapsed since the OLR

filed the disciplinary complaint and Attorney Muwonge has been

suspended for over eight of those years so we trust that the

parties      will      work       to     resolve       the      underlying         matter

expeditiously.

       ¶27   Finally,       we accept the referee's recommendation and

impose on Attorney Muwonge the full costs of this proceeding,

which are $8,118.32 as of April 27, 2016.



                                            14
                                                               No.   2007AP776-D


    ¶28   IT IS ORDERED that the petition for reinstatement of

the license of Godfrey Y. Muwonge to practice law in Wisconsin

is granted, effective the date of this order.

    ¶29   IT    IS    FURTHER   ORDERED     that,   as   conditions     of   the

reinstatement    of    his   license   to   practice     law   in    Wisconsin,

Godfrey Y. Muwonge shall comply with the following mandatory

conditions:

         (1)   WisLAP Monitoring. Continued participation
    in the WisLAP monitoring program for a period of two
    years following the date of this order;

         (2) Law Practice Supervision and Status Reports.
    Supervision of his law practice for a period of two
    years following the date of this order. The court
    appoints Attorney Howard Block to serve as practice
    monitor. If Attorney Block ceases to be available to
    monitor Attorney Muwonge, his successor shall be an
    attorney approved by WisLAP.      The practice monitor
    will provide written reports to the OLR in September
    and December 2016; March, June, September, and
    December 2017; and March and June 2018. To facilitate
    effective practice monitoring, Attorney Muwonge is
    directed   to  provide   his   practice  monitor  with
    permission to speak with all treating mental health
    and substance abuse providers.

         (3)    Treatment and Status Reports. Continued
    treatment   as   recommended  by   Attorney  Muwonge's
    treatment providers to address mental health issues,
    with at least one mental health treatment provider
    sending the OLR a written status report in January and
    July 2017, and in January and July 2018;

         (4)    Financial obligations.  Attorney Muwonge
    shall, if he has not already done so and subject to
    his ability to pay, make arrangements with the
    Wisconsin Lawyers' Fund for Client Protection (Fund)
    for repayment of any sums due to the Fund and shall
    also make arrangements with the OLR for repayment of
    outstanding costs.

                                       15
                                                             No.   2007AP776-D


    ¶30     IT IS FURTHER ORDERED that within 120 days of the date

of this order, Godfrey Y. Muwonge shall pay to the Office of

Lawyer Regulation the costs of this proceeding, absent a showing

of his inability to pay.

    ¶31     IT   IS   FURTHER   ORDERED     that   restitution     is   to   be

completed     prior   to   paying   costs    to    the   Office    of   Lawyer

Regulation.

    ¶32     IT IS FURTHER ORDERED that the court will, by separate

order, appoint a referee to proceed with the abated misconduct

action as required by SCR 22.16(4)(d).

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

terms of this order remain a condition of Godfrey Y. Muwonge's

license to practice law in Wisconsin.




                                     16
                                                        No.   2007AP776-D.ssa


      ¶34   SHIRLEY S. ABRAHAMSON, J.      (concurring).        I join the

per curiam, but I have reservations about ¶26.

      ¶35   On April 21, 2016, the court adopted Rule Petition 14-

06 to grant more discretion to the OLR in disciplinary matters.

I wonder why the OLR cannot exercise its discretion with regard

to   sending   the   old   outstanding   disciplinary    matter     to   the

referee?    Have we not given the OLR sufficient discretion?




                                    1
    No.   2007AP776-D.ssa




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