                                                                2015 WI 82

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               1989AP1848-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against
                        Daniel W. Linehan, Attorney at Law:

                        Board of Attorneys Professional Responsibility
                        n/k/a
                        Office of Lawyer Regulation,
                                  Complainant,
                              v.
                        Daniel W. Linehan,
                                  Respondent.

                            DISCIPLINARY PROCEEDNGS AGAINST LINEHAN

OPINION FILED:          July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

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


ATTORNEYS:
                                                                             2015 WI 82
                                                                     NOTICE
                                                       This opinion is subject to further
                                                       editing and modification.   The final
                                                       version will appear in the bound
                                                       volume of the official reports.
No.    1989AP1848-D


STATE OF WISCONSIN                                 :              IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Daniel W. Linehan, Attorney at Law:

Board of Attorneys Professional Responsibility
n/k/a Office of Lawyer Regulation,                                        FILED
             Complainant,                                            JUL 15, 2015
      v.                                                                Diane M. Fremgen
                                                                     Clerk of Supreme Court
Daniel W. Linehan,

             Respondent.




      ATTORNEY     reinstatement      proceeding.           Reinstatement        granted
upon conditions.



      ¶1     PER   CURIAM.    We     review    a       report     filed    by    Referee
James G. Curtis, recommending that the court reinstate, with
conditions,    Daniel    W.   Linehan's       license        to    practice      law     in
Wisconsin.     After careful review of the matter, we agree that
Attorney     Linehan's     license     should          be   reinstated        and     that
conditions should be placed upon his practice of law.                            We also
conclude that Attorney Linehan should be required to pay the
                                                                          No.     1989AP1848-D



full     costs    of     this    reinstatement             proceeding,          which       are
$15,714.12 as of April 14, 2015.
       ¶2   Attorney      Linehan       was       admitted       to     practice     law    in
Wisconsin in 1977 and practiced in Madison.                       In 1989, this court
granted Attorney Linehan's petition for license revocation by
consent and revoked his license to practice law in Wisconsin
effective November 1, 1989.              See In re Disciplinary Proceedings
Against Linehan, 151 Wis. 2d 797, 446 N.W.2d 450 (1989).
       ¶3   Attorney Linehan's petition for voluntary revocation
of his license to practice law stated that he was the subject of
an   investigation       of   possible        misconduct         with    respect     to     his
representation      of    a   client     "and      is     also    the     subject      of    an

investigation       involving       possible             misconduct         and      medical
incapacity due to chronic substance abuse."                             Attorney Linehan
acknowledged that he could not successfully defend against the
allegations of misconduct.              As additional background, he stated
that he had been afflicted with a longstanding, chronic sickness
or disease involving several forms of substance abuse, which
sickness    or    disease     was   a    factor          which    contributed        to     the
conduct resulting in the misconduct allegations that were the
subject of investigations by the Board of Attorneys Professional
Responsibility (BAPR), the predecessor in interest to the Office
of     Lawyer    Regulation     (OLR).             The     petition       for      voluntary
revocation stated that, despite both inpatient and outpatient
treatment, Attorney Linehan continued to be afflicted by chronic
and significant problems involving substance abuse.                                 Attorney
Linehan stated that he believed he was unable to obtain the
                                              2
                                                                             No.     1989AP1848-D



long-term         treatment       needed    to       effectively         recover      from    his
medical condition and still practice law at the same time.                                    He
stated that his desire to voluntarily surrender his license to
practice law was based in part upon his belief that he had a
medical       incapacity,         and   that     he     desired         to   obtain     further
treatment for that condition.
        ¶4     The     two-page         published          order        revoking       Attorney
Linehan's         license     to    practice         law     by    consent         stated    that
Attorney Linehan was a subject of investigation by BAPR

        in connection with his use of client trust funds for
        his own personal purposes, deposit of personal loan
        proceeds into his client trust account, failure to
        promptly pay settlement proceeds to a client and fully
        account to the client for those proceeds he had
        deposited in his trust account, failure to maintain
        records pertaining to his trust account and record the
        purpose of disbursements from that account and his
        chronic substance abuse.
Linehan, 151 Wis. 2d at 798.
        ¶5     Attorney Linehan filed petitions for the reinstatement
of his license to practice law in 1996 and 1998, both of which
were    withdrawn.          His     most    recent         reinstatement       petition       was
filed on February 18, 2014.                      Referee Curtis was appointed on
April    8,    2014.        The    referee       held      an   evidentiary         hearing    in
January      of    2015   and      issued    his      report      and    recommendation        on
March 25, 2015.
        ¶6     The referee said that, as a result of the evidence
presented at the hearing and the numerous exhibits received by
stipulation, it was clear that "[t]his is, first and foremost, a
medical incapacity case."                  The referee said there was no doubt

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                                                                              No.    1989AP1848-D



that a medical incapacity in the form of chronic substance abuse
directly          caused    Attorney          Linehan's       trust   account       misconduct.
The referee said that, because this case was submitted to the
court        in    1989     as    a     consensual        revocation,         the   court      was
presented         with     limited      information          about    the     substance      abuse
allegations.
        ¶7        The      referee       noted         that      an     attorney          seeking
reinstatement after a disciplinary suspension or revocation must
demonstrate by clear, satisfactory, and convincing evidence that
he or she has the moral character necessary to practice law in
this state, that his or her resumption of the practice of law
will    not       be    detrimental       to    the    administration          of   justice     or

subversive of the public interest, and that the attorney has
complied fully with the terms of the suspension or revocation
order and the requirements of Supreme Court Rule (SCR) 22.26.
In addition, SCR 22.31(1)(c) incorporates the statements that a
petition           for      reinstatement              must      contain        pursuant        to
SCR 22.29(4)(a)-(4m).                  Among other things, an attorney seeking
the reinstatement of his license has the burden to prove that
his    conduct          since     revocation      has     been       "exemplary       and    above
reproach."              SCR 22.29(4).           The     referee       noted    that    Attorney
Linehan       freely       admitted       that    his     conduct       during      the     entire
period of revocation has not been exemplary and above reproach,
given that he continued to suffer from alcohol and substance

abuse issues through at least 2009.                            Consequently, the referee
said     that       if     this       court     were    to     deem    Attorney       Linehan's
reinstatement petition as having been filed under SCR 22.29, the
                                                  4
                                                                            No.   1989AP1848-D



referee would have to conclude that Attorney Linehan failed to
meet     his    burden    of    proof   in      a     number       of       respects,     most
significantly that Attorney Linehan has failed to demonstrate
that his conduct since the revocation has been exemplary and
above    reproach.        The   referee      went     on    to     say,      "But    even    if
Mr. Linehan waited another 10 years to seek reinstatement, and
exhibited exemplary conduct during that time, he could never
prove    that     his    conduct   since       the    1989       revocation         has   been
exemplary and above reproach.                  His past misdeeds would always
come back to haunt him."
        ¶8     In the referee's view, Attorney Linehan's revocation
by consent should be viewed as a revocation based on a medical

incapacity, meaning that reinstatement is governed by SCR 22.36.
Under that rule, 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.                                     The
referee        noted    that,    although       there        was        a    component       of
professional       misconduct      involved          in    the     consensual        license
revocation, in the referee's opinion, the misconduct itself was
not sufficient to warrant an outright revocation and the more
significant impetus for the consensual revocation was Attorney
Linehan's medical incapacity.                  The referee said that, in the
event this case is viewed as a medical incapacity reinstatement

matter, the referee is satisfied that the medical incapacity has
been removed and that Attorney Linehan's license to practice law
in Wisconsin should be reinstated, with conditions.
                                           5
                                                                           No.    1989AP1848-D



        ¶9      In reaching this conclusion, the referee noted that
"[t]his case presents the Jekyll/Hyde paradox in the life and
times of Daniel W. Linehan, who has been 'characterized as sane
when he is clean and sober and as insane when he is not.'"                                 The
referee       found     that    Attorney        Linehan       has   been   afflicted      with
chronic alcohol and substance abuse since approximately age 15.
In    the      1980s,    prior     to     his     consensual        license      revocation,
Attorney        Linehan        received         both    inpatient          and   outpatient
treatment but exhibited a tendency for relapses of his chronic
substance abuse.           The referee found that the chronic substance
abuse substantially interfered with Attorney Linehan's ability
to conduct his law practice.                    The referee noted that after the

revocation of his law license, Attorney Linehan spent time in
the   Dane      County    jail    on     a   drunk      driving      conviction     and    his
driver license was revoked.
        ¶10     The referee further noted that in the 1990s, Attorney
Linehan worked as a clerk for a law firm in Minnesota and as a
paralegal        with     the     Hennepin           County     Attorney's       Office     in
Minneapolis.            The referee found that this employment was not
deemed contrary to the Minnesota Rules of Professional Conduct.
While        Attorney    Linehan        remained       relatively      clean     and    sober
between 1992 and 1995, he suffered a relapse in 1995.                                  He was
terminated from his job at the Hennepin County Attorney's Office
in the spring of 1998 due to substance abuse issues.                                Attorney

Linehan filed petitions for the reinstatement of his Wisconsin
law license in 1996 and 1998 but was not honest about the status


                                                 6
                                                                         No.     1989AP1848-D



of his substance abuse problems and decided to withdraw both
petitions.
       ¶11     In 1998, Attorney Linehan was charged with theft of a
motor vehicle and aggravated drunk driving in Minnesota.                              He was
convicted      and     placed    on     probation.          Around       1998,     Attorney
Linehan began treating with Dr. Roger Johnson, a psychiatrist.
Dr.    Johnson       remained    Attorney         Linehan's       main    mental      health
treatment       provider        until       the     doctor        retired        in    2010.
Dr. Johnson diagnosed Attorney Linehan with major depression and
treated      him     with   medication.            With     the    doctor's        support,
Attorney       Linehan      applied         for    Social     Security           Disability
benefits, which were awarded around 1998.

       ¶12     In December of 1998, Attorney Linehan was arrested for
intoxication and being in possession of a stolen automobile.
The    investigation        revealed         that     he     had     burglarized           his
neighbor's residence, stole credit cards and their vehicle, and
made charges with the credit cards without proper consent.                                 He
was charged with eight criminal counts.                     Because he was already
on probation, he was incarcerated in the Sherburne County jail
from December of 1998 until February of 1999.                             In January of
1999, he was also charged with forgery involving a $3,000 check.
Attorney Linehan entered into a plea agreement on the charges in
February of 1999 and was convicted and sent to prison.                                Around
June 1, 1999, he was released on an ankle bracelet monitoring

program.       He suffered a relapse and was arrested and sent back
to    prison    for    violating      the    terms    of    his    release.           He   was
released from custody in July of 2000.
                                              7
                                                                  No.    1989AP1848-D



        ¶13   In 2003, Attorney Linehan was convicted of operating
after    revocation    in    Wisconsin.        In   2002    and    2003,       he   was
sporadically drinking and using drugs.               He engaged in sporadic
drinking and drug use again between 2006 and 2008.                      In December
of 2009, he was taken into custody for an emergency detention
when a friend called police to report that Attorney Linehan was
very    intoxicated    and     was   making   threats      to   harm    himself      or
others.       He was admitted to Mendota Mental Healthcare Center.
Following      a   detention     hearing,     the   court       found    the    least
restrictive level of care was on an outpatient basis, although
the court expressed concern over threats that had been made.
The court ordered daily breathalyzer sampling to ensure that

Attorney Linehan remained sober and, if he could not, he would
be taken into custody.
        ¶14   The referee said Attorney Linehan maintains that his
recovery began in a serious way after he was discharged from
Mendota Mental Healthcare Center, that since that time he has
worked hard to overcome his medical incapacity, and that, apart
from a two- or three-week lapse in July of 2011 after a friend
died, he has maintained sobriety since that time.                       The referee
said:

             Since   2009   Linehan  has   continued   to   make
        important progress in his personal and spiritual
        growth   and   character  change.     He   returned   to
        attendance   at   local  [Alcoholics   Anonymous   (AA)]
        meetings   multiple   times  per   week   and   obtained
        significant support from friends in the Black River
        Falls community.



                                        8
                                                                     No.   1989AP1848-D


          Linehan's recovery status over the last five
     years has progressively improved.    His viewpoint and
     attitude have changed so that he is better able to
     enjoy life. His depression is in a state of remission
     and he has stopped believing that his life wasn't
     worth living.   He has experienced a growing awareness
     of   happiness  and   joy,  rather  than   a  grudging
     resistance to recovery.

          The referee finds that Linehan's sworn testimony
     and his presentation at the hearing was credible,
     forthright and open.  He has a very strong desire to
     return to the practice of law.   He describes himself
     as a clean and sober person and in that state, he
     believes he is a person who can be relied upon to
     uphold the standards of the legal profession because
     they are right and because he's asking permission for
     reinstatement.  . . . .   As long as he is clean and
     sober, Linehan believes that he can be safely
     recommended to the public, the courts and the legal
     profession as a person fit to consult on legal
     matters.
     ¶15     In    November      of   2011,        Attorney    Linehan       obtained

employment with the Hixton Travel Plaza as a maintenance man and
dishwasher.       He has worked two shifts per week, approximately 16
hours, and has been a reliable and dependable employee.
     ¶16     In   October   of    2012,     Attorney     Linehan      contacted      the
Wisconsin Lawyers Assistance Program (WisLAP) to inquire about
voluntary monitoring of his substance abuse.                       Attorney Linehan
voluntarily disclosed his July 2011 relapse in the course of his
WisLAP     monitoring   and      in   the       course   of   this     reinstatement
proceeding.       The referee found that if Attorney Linehan had not
made this voluntary disclosure, the relapse would never have
been known.       The referee noted that WisLAP Manager Linda Albert
described    Attorney    Linehan's        participation       in   the     program   as
exemplary.        Ms. Albert testified at the reinstatement hearing


                                            9
                                                                   No.    1989AP1848-D



that    Attorney       Linehan   has   come    to   grips   with   his    deplorable
history and seems ready to make a change.                      Beginning in late
November of 2012, Attorney Linehan has undergone nail drug and
alcohol testing every 90 days and all tests have been negative.
His participation in the WisLAP program has been voluntary, and
he has paid for the testing at the rate of approximately $1,400
per year.         The monitoring contract requires attendance at AA
meetings at least three times per week.                     Attorney Linehan has
exceeded that standard by attending three to five meetings per
week.         The monitoring contract requires daily check-ins, and
Attorney Linehan has been highly compliant, making 765 daily
check-ins out of a possible total of 767.                   Ms. Albert recommends

that Attorney Linehan continue with monitoring whether or not
his law license is reinstated, since monitoring will detect any
relapse episode and it will be promptly reported to the OLR.
Although Attorney Linehan's current monitoring contract ends in
October of 2015, it can be continued indefinitely.                       The referee
noted that Attorney Linehan is asking this court to consider
indefinite monitoring as a condition of reinstatement.
        ¶17    The referee said that although Dr. Johnson lost his
clinic notes on Attorney Linehan, the doctor wrote a letter in
July     of     2013     summarizing      Attorney      Linehan's        psychiatric
treatment from 1998 until 2010.               Dr. Johnson said:

             Based upon my involvement with Dan over the years
        it is my opinion, to a reasonable degree of medical
        certainty, that he is not a threat to society,
        criminally or otherwise if he is clean and sober.
        This   coupled  with   his   gradual   improvement  of
        depressive symptoms over the years, also leads me to

                                         10
                                                                          No.     1989AP1848-D


       conclude that he is capable of making an attempt to
       return to work, particularly in the area of his
       original training, the law.
       ¶18     The     referee        noted     that      as     part     of     the    OLR's
investigation of the reinstatement petition, the OLR scheduled
an independent psychiatric and addiction evaluation, which was
performed by Dr. Matthew Felgus on October 1, 2014.                              Dr. Felgus
concluded that Attorney Linehan's substance abuse disorder was
currently      in      full     remission.          Dr.   Felgus        said,    "Like     all
individuals          with     substance       dependence,       there     is    an     ongoing

chance    of    relapse        that    in   Mr.     Linehan's     case     would       warrant
indefinite       monitoring           should        he    meet     the         standard    of
reinstatement."             The   referee       noted     that    under        SCR 22.36(6),
"fitness" encompasses a physically, mentally, and morally sound
state and 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.     Based on this standard, the referee said he is satisfied
that Attorney Linehan's medical incapacity has been removed.                                He
said that Attorney Linehan deserves a great deal of credit for
the effort made to turn his life around.                       The referee said:

            A   decision   by   this   court   to   reinstate
       Mr. Linehan's license will enhance his self-esteem,
       his confidence, and his overall recovery. Mr. Linehan
       shows true remorse for his prior bad behavior.       A
       decision granting reinstatement would be a recognition
       by the court that even after a lengthy period of

                                               11
                                                                       No.     1989AP1848-D


        revocation and bad behavior, an attorney can benefit
        from the effort necessary to straighten out and fly
        right.

             So long as Mr. Linehan remains clean and sober,
        the medical incapacity has been removed.      But Mr.
        Linehan's history suggests that a relapse episode,
        while unlikely, remains a possibility. Therefore, any
        decision to reinstate Mr. Linehan's license should be
        strictly conditioned on his continued participation in
        the WisLAP monitoring program until such time as
        WisLAP determines that ongoing monitoring is no longer
        necessary.   In the event of a relapse, WisLAP would
        immediately report to OLR and Mr. Linehan's license
        could be summarily suspended pending any further
        investigation.
        ¶19    The    referee    said     that      the   "fitness"    requirement       of

SCR 22.36(6) was more troubling, given that Attorney Linehan has
not practiced law for over 25 years and that there have been
significant changes in the law during that time.                             In addition,
he has not held full-time employment in any capacity since 1998.
The referee noted, however, that Attorney Linehan has maintained
learning in the law by completing the required continuing legal
education       (CLE)       credits    needed       for   reinstatement.         Attorney
Linehan       has    also    consulted     with      an   accountant    to     prepare   a
system    for       accounting    of     his   income     and     expenses    should   his
license to practice law be reinstated.                      In addition, the referee
noted    that       Attorney     Terry    Davis      acts    as    Attorney     Linehan's
monitor through the WisLAP program, and if Attorney Linehan is

granted reinstatement, he will be able to call on Attorney Davis
on a weekly basis to discuss issues and problems in the practice
of law.       In the referee's opinion, this ongoing monitoring will
provide some assurance that Attorney Linehan is handling matters


                                               12
                                                                         No.    1989AP1848-D



within his sphere of competence and is adequately addressing his
clients' needs.
      ¶20    In addition, the referee noted that Attorney Lawrence
Hanson, who has honorably practiced law for 54 years and has
been very involved with Lawyers Concerned for Lawyers and with
WisLAP, got to know Attorney Linehan in the 1980s and has had
frequent contacts with him in the last two and one-half years.
The   referee      said      that    Attorney       Hanson    knows      the    perils    of
chronic     substance        abuse    and,     in    Attorney      Hanson's       opinion,
Attorney Linehan is absolutely qualified to practice law based
on his background and knowledge, so long as he stays away from
drugs and alcohol.

      ¶21    The referee also noted that, if reinstated, Attorney
Linehan says he will not look for full-time employment with a
law firm but believes there would be a significant amount of
small legal business in his community.                   Prior to 1989, Attorney
Linehan     had   a     general      practice     with   over      100    criminal      jury
trials    and     25    or   30     civil    trials.         The   referee       said   that
Attorney     Linehan         does     have     substantial         legal       experience,
although     it    is    dated.        The    referee    said      that,       considering
Attorney     Linehan's        age    and    circumstances,         he    would    probably
practice on a part-time basis, and with the WisLAP monitoring,
his practice will be subject to some measure of oversight and
control.     The referee said:

      In a case involving a lengthy suspension, it is always
      difficult for a lawyer to affirmatively prove the
      fitness element.     Having witnessed Mr. Linehan's
      presentation at the hearing and with the benefit of

                                             13
                                                                    No.    1989AP1848-D


       the WisLAP monitoring, Attorney Davis' mentoring, and
       Attorney Hanson's opinion on qualifications, the
       referee concludes that Mr. Linehan has met his burden
       of proving that he is fit to resume the practice of
       law, with conditions, under SCR 22.36(6).
       ¶22   The   referee     noted    that     during     the     course    of    the
reinstatement      proceedings,        the     OLR    contended     that     Attorney

Linehan failed to acknowledge his obligation to reimburse the
Wisconsin Lawyers' Fund for Client Protection (Fund) and failed
to fairly characterize that obligation in his petition.                             The

referee noted that the trust account violations mentioned in the
1989     consensual        revocation        proceeding      involved        Attorney
Linehan's client, S.W.         S.W.'s personal injury case was settled
for $20,000.       Attorney Linehan was entitled to a contingent fee
and expenses.      At the time, Attorney Linehan was using drugs and
alcohol and his practice was out of control.                        Various checks
were written out of the trust account, both to S.W. and to
Attorney Linehan.          Attorney Linehan maintains that he and S.W.

met and agreed to resolve the matter.                 Attorney Linehan contends
that he obtained a loan from his father and paid S.W. the agreed
upon balance owed.          Because of the hopeless state of his trust
accounting     and    business      records,         Attorney     Linehan     has   no
documentary proof of the agreement or of the final payment to
S.W.
       ¶23   In addition to filing a grievance with the OLR, S.W.
submitted a claim to the Fund and ultimately received $4,513.33
from   the   Fund,    in   return   for      which    he   signed    a    subrogation
agreement.     The administrator of the Fund resurrected the file
but acknowledged that it may not be complete.                   The administrator

                                          14
                                                                         No.    1989AP1848-D



testified that the Fund does not actively seek restitution from
attorneys     unless      this     court      has     ordered      restitution.           The
court's 1989 revocation order did not mention restitution.
      ¶24    Attorney Linehan said that he first became aware that
the Fund had paid a claim to S.W. in 2005.                      At the time he filed
his reinstatement petition, although he believed that the Fund
had paid S.W., it was his position that he did not need to pay
the Fund back since the Fund never notified him and since he
believed he had already paid S.W.                   Prior to the hearing in this
matter, however, Attorney Linehan entered into an agreement to
reimburse the Fund at the rate of $75 per month.                               The referee
said that since Attorney Linehan has made suitable arrangements

for installment payments that are acceptable to the Fund, the
restitution issue should not stand as an impediment to Attorney
Linehan's request for reinstatement.
      ¶25    In     summary,     the        referee    recommends        that     Attorney
Linehan's petition for reinstatement from his medical incapacity
be granted, with the following conditions:                      a) that he continue
participation in the WisLAP monitoring program on an indefinite
basis,      until    such   time       as     WisLAP    determines         that    ongoing
monitoring     is    no   longer    necessary;         b)   that    he    continue       with
monitoring/mentoring with either Attorney Terry Davis or some
other appropriate attorney as determined by WisLAP; c) that he
remain fully compliant with the WisLAP monitoring program, with

any noncompliance detected by WisLAP to be immediately reported
to the OLR which, in turn, may petition this court for a summary
and   immediate       suspension       of      Attorney     Linehan's          license     to
                                              15
                                                                      No.    1989AP1848-D



practice law pending any further investigation or proceedings
that may be necessary under the circumstances; d) that, within
the next 12 months, he successfully complete 15 hours of CLE
ethics courses, at least eight of which focus on trust account
administration; e) that, upon reinstatement of his license, he
consult with an appropriate accountant to develop an effective
business and trust accounting system; f) that he cooperate with
the OLR's efforts to monitor his business and trust accounting
for a period of one year; and g) that he fully comply with the
terms of his restitution agreement with the Fund.
       ¶26    No appeal has been filed, so this court considers this
matter pursuant to SCR 22.33(3).                  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 which we review de novo.                      In re Disciplinary
Proceedings Against Chavez, 2012 WI 83, ¶14, 342 Wis. 2d 419,
816 N.W.2d 265.
       ¶27    We agree with the referee that, although this court's
cursory       1989    order    revoking     Attorney        Linehan's       license    to
practice      law    by    consent   did    not    explicitly     state       that    the
revocation was due to a medical incapacity, the petition for
voluntary      revocation      clearly     identified       medical    incapacity      as
the primary driving force behind Attorney Linehan's decision to
relinquish his law license.              Accordingly, we deem it appropriate
                                           16
                                                                            No.    1989AP1848-D



to treat his petition for reinstatement of his license as having
been    filed       under   SCR 22.36.            We    further       conclude      that    the
referee's findings support a determination that Attorney Linehan
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 Linehan's license
to practice law are necessary to ensure that he continues to
receive appropriate treatment.                   Finally, we deem it appropriate
to   require        Attorney      Linehan    to       pay    the     full   costs    of    this
proceeding, $15,714.12.
        ¶28    IT IS ORDERED that the petition for reinstatement of

the license of Daniel W. Linehan 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,
Daniel    W.    Linehan      shall    comply          with     the   following      mandatory
conditions:          a) he shall continue participation in the Wisconsin
Lawyers Assistance Program monitoring program on an indefinite
basis, until such time as the program determines that ongoing
monitoring is no longer necessary; b) he shall continue with
monitoring/mentoring with either Attorney Terry Davis or some
other     appropriate        attorney       as        determined       by    the    Wisconsin
Lawyers Assistance Program; c) he shall remain fully compliant

with     the        Wisconsin      Lawyers       Assistance          Program       monitoring
program, with any noncompliance detected by the program to be
immediately reported to the Office of Lawyer Regulation which,
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                                                                       No.     1989AP1848-D



in turn, may petition this court for a summary and immediate
suspension of Attorney Linehan's license to practice law pending
any further investigation or proceedings that may be necessary
under the circumstances; d) within the next 12 months, he shall
successfully       complete      15    hours     of    continuing     legal     education
ethics courses, at least eight of which focus on trust account
administration; e) upon reinstatement of his license, he shall
consult with an appropriate accountant to develop an effective
business and trust accounting system; f) he shall cooperate with
the     Office    of    Lawyer        Regulation's       efforts      to     monitor   his
business and trust accounting for a period of one year; and
g) he    shall    fully   comply        with     the    terms    of   his     restitution

agreement        with    the     Wisconsin            Lawyers'    Fund       for   Client
Protection.
        ¶30   IT IS FURTHER ORDERED that within 120 days of the date
of this order, Daniel W. Linehan shall pay to the Office of
Lawyer Regulation the costs of this proceeding.
        ¶31   IT IS FURTHER ORDERED that compliance with all of the
terms of this order remain a condition of Daniel W. Linehan's
license to practice law in Wisconsin.




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                                                                  No.    1989AP1848-D.ssa


     ¶32    SHIRLEY      S.   ABRAHAMSON,      J.        (concurring).         I   agree
with the majority that Attorney Linehan's license to practice
law should be reinstated and that numerous conditions should be
imposed    to   ensure    that   he   continues          to     receive    appropriate
treatment and monitoring.          I part company with the majority as
to condition c.          Rather than authorizing the OLR to petition
this court for a summary and immediate suspension of Attorney
Linehan's   license      to   practice       law    in    the    event    it   receives
notice of noncompliance from WisLAP, I would direct the OLR to

seek the issuance of an order to show cause why the attorney's
license should not be summarily suspended.




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