                                                                 2016 WI 39

                  SUPREME COURT                OF   WISCONSIN
CASE NO.:               2015AP1393-BA
COMPLETE TITLE:         In the Matter of the Bar Admission
                        of Joshua E. Jarrett

                        Joshua E. Jarrett,
                                  Petitioner,
                             v.
                        Board of Bar Examiners,
                                  Respondent.

                                          BAR ADMISSION OF JARRETT

OPINION FILED:          May 18, 2016
SUBMITTED ON BRIEFS:    February 24, 2016
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           PROSSER, J. concurs, joined by BRADLEY, A.W., J.
                        and BRADLEY, R.G., J.
  DISSENTED:            ROGGENSACK, C. J. dissents, joined by ZIEGLER,
                        J. and GABLEMAN, J.
  NOT PARTICIPATING:

ATTORNEYS:
       For the petitioner, there were briefs by Joshua E. Jarrett.


       For      the    Board   of   Bar    Examiners,   there   was   a   brief   by
Jacquelynn B. Rothstein, Director & Legal Counsel.
                                                                               2016 WI 39
                                                                       NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.    2015AP1393-BA


STATE OF WISCONSIN                                   :            IN SUPREME COURT

In the Matter of the Bar Admission
of Joshua E. Jarrett


Joshua E. Jarrett,                                                          FILED
            Petitioner,
                                                                       MAY 18, 2016
      v.
                                                                          Diane M. Fremgen
                                                                       Clerk of Supreme Court
Board of Bar Examiners,

            Respondent.




      REVIEW    of    Board     of    Bar    Examiners          decision.         Decision

reversed and remanded.


      ¶1    PER      CURIAM.     This       is   a   review,        pursuant       to    SCR

40.08(7), of the final decision of the Board of Bar Examiners

(Board)    declining     to    certify      that     the    petitioner,        Joshua      E.

Jarrett, has satisfied the character and fitness requirements

for admission to the Wisconsin bar set forth in SCR 40.06(1).

The Board's refusal to certify that Mr. Jarrett satisfied the

character      and    fitness        requirements         for     admission       to     the
                                                                            No.     2015AP1393-BA


Wisconsin      bar     was     based       primarily         on    Mr.    Jarrett's       conduct

following      his     second       year    in    law     school,        when     he     committed

academic    misconduct          by    misrepresenting              law    school       grades    and

information to a prospective employer.                            After careful review, we

reverse     and      remand         the    matter       to    the        Board     for    further

proceedings.

      ¶2       We    appreciate           the    Board's          concern    regarding          this

candidate,       and      we   appreciate        the     thorough         investigation         the

Board conducted into Mr. Jarrett's background and past conduct.

Mr. Jarrett's academic misconduct raised a significant question

about    his     fitness       to    practice        law.     The    duty    to     examine      an

applicant's qualifications for bar admission rests initially on

the     Board,      and    this      court       relies       heavily       on     the     Board's

investigation and evaluation. In the final analysis, however,

this court retains supervisory authority and has the ultimate

responsibility for regulating admission to the Wisconsin bar.

See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis. 2d

519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren,

2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27.

      ¶3       While we understand the Board's decision, we conclude

that the incidents the Board relied upon, while troubling, are

sufficiently offset by evidence of rehabilitation to warrant our

conclusion that Mr. Jarrett may be admitted to the practice of



                                                 2
                                                                 No.     2015AP1393-BA


law   in   this   state,    albeit    with         conditions.   Accordingly,      we

reverse.

      ¶4     Mr. Jarrett grew up in Georgia.                He attended Albany

State University, majoring in Criminal Justice and graduating in

2009. He participated in a prestigious summer internship with

the   U.S.   Department     of    State       in    Washington   D.C.,     and   then

returned to Georgia to become a police officer.                        After serving

successfully as a police officer for a year, Mr. Jarrett applied

and was accepted at the University of Wisconsin Law School.

      ¶5     Mr. Jarrett started law school in the fall of 2011.

As a first-year law student, Mr. Jarrett was accepted into the

Wisconsin    Innocence     Project    criminal        appeals    clinic    where   he

performed well.

      ¶6     In   2012,   Mr.    Jarrett      committed    the   misconduct      that

eventually gave rise to this proceeding.                  The Board would later

make the following factual findings regarding the incident:

           2.    In the Summer of 2012 and as part of the
      summer    employment    procurement   process for   law
      students, Mr. Jarrett submitted a resume and an
      unofficial transcript to the University of Wisconsin
      Law    School    office    responsible    for on-campus
      interviews.    Through that process, Mr. Jarrett sought
      employment with the New York City Law Department for
      the Summer of 2013.

           3.   The resume and unofficial transcript that
      Jarrett submitted to the New York City Law Department
      were both false. The resume contained two falsehoods.
      It showed Mr. Jarrett's grade point average (GPA) to
      be 2.75, when it was actually 2.72.    It also listed
      him as a staff member of the Wisconsin Law Review,

                                          3
                                           No.   2015AP1393-BA


when, in fact, he was not a member.   The unofficial
transcript  listed  three   false  grades  for   his
coursework.   It indicated that he had "B" grades,
when, in fact, he had "B-" grades for all three
courses.

     4. Thereafter, Mr. Jarrett sent an e-mail to the
New York City Law Department.    In it, he explained
that the deadline date for the submission of his
employment materials was the same date upon which he
had been informed that he had not been chosen for Law
Review.

     5. Determined to be "completely forthright" with
the New York City Law Department, Mr. Jarrett attached
an updated resume and unofficial transcript to the e-
mail noting that all the other information was current
and valid.   However, Mr. Jarrett did not correct the
other falsehoods, namely the inflated grades and GPA.
Instead, this version of his transcript noted his GPA
as a 3.0, not the inflated 2.75 or the actual 2.72.

     6. In that same e-mail to the New York City Law
Department, he continued to report incorrect grades.
Two grades were inflated from "B-'s" to "B's."    Two
others were similarly inflated; one from a B- to a B+
and the other from a B to a B+.

     7.    A hearing regarding Mr. Jarrett's alleged
misconduct was held on September 7, 2012, before the
Academic    Misconduct  Hearing   Committee  of   the
University of Wisconsin (Committee). On September 17,
2012, the Committee issued a written decision and
determined that Mr. Jarrett admitted to having
embellished his academic documents on two separate
occasions.

     8.    The Committee further found that although
Mr. Jarrett had admitted to violating the University
of Wisconsin's academic code of conduct by forging or
falsifying    academic  documents  or   records,   the
seriousness    of  that  offense  did  not   seem   to
immediately resonate with Mr. Jarrett.   The Committee




                          4
                                                              No.   2015AP1393-BA


       also sanctioned Mr. Jarrett by placing                 him   on   two
       semesters of disciplinary probation.1

            9.    In his application for admission to the
       Wisconsin bar, Mr. Jarrett admitted to inflating his
       grades and misrepresenting his position on the
       Wisconsin Law Review.

            10.   Mr. Jarrett did not disclose the actual
       truth to the New York City Law Department about being
       on Law Review, his grades, or his GPA.

            11.     Mr. Jarrett repeatedly cited feeling
       enormous pressure as the primary reason for engaging
       in his wrongful conduct.

            12. Mr. Jarrett admitted that at the time of his
       wrongful conduct he did not believe that he would get
       caught for providing false information to the New York
       City Law Department or that anyone would check to see
       whether he was actually on Law Review.


       ¶7     Meanwhile, Mr. Jarrett's law school studies continued.

He continued to perform well working for the Wisconsin Innocence

Project,      joined   the    University    of    Wisconsin   Law   School     Moot

Court Board, competed in two moot court competitions, coached a

moot       court   team,     participated    in    a   Volunteer    Income      Tax

Assistance Clinic, held an unpaid summer law clerk position with

the Wisconsin Department of Revenue, and worked as an academic

advisor at a private student housing facility.


       1
       In addition to placing Mr. Jarrett on academic probation
for two semesters, the Committee also required Mr. Jarrett
obtain the latest issue of Wisconsin Lawyer magazine, read the
pages pertaining to attorney conduct, and schedule a meeting
with the Law School Dean to discuss what he had read.       Mr.
Jarrett satisfied these requirements.


                                        5
                                                     No.    2015AP1393-BA



    ¶8    In   December   2013,   as    a   third-year     law   student

anticipating graduation, Mr. Jarrett applied for admission to

the Wisconsin State Bar under the diploma privilege, SCR 40.03.

In his bar application, Mr. Jarrett disclosed having inflated

his grades and misrepresenting his position on the Wisconsin Law

Review in his bar application.         Mr. Jarrett failed to report

several traffic citations that he had received between 2009 and

2013.

    ¶9    In January 2014, a Board investigator contacted Mr.

Jarrett regarding his failure to disclose the traffic citations.

Mr. Jarrett replied in writing that he "legitimately forgot" and

filed an addendum regarding the citations.

    ¶10   On August 5, 2014, the Board informed Mr. Jarrett,

consistent with SCR 40.08(1), that his bar admission application

was "at risk of being denied" on character and fitness grounds.

Mr. Jarrett formally contested the Board's preliminary adverse

determination and requested a hearing before the Board.

    ¶11   The Board conducted a hearing on December 8, 2014, at
which Mr. Jarrett appeared. Following the hearing Mr. Jarrett

filed some additional documents in support of his application.

On April 10, 2015, the Board issued an adverse decision making

the findings set forth above, as well as the following findings:

          13.   During his hearing before the Wisconsin
    Board    of  Bar  Examiners,  Mr.   Jarrett  presented
    inconsistent and sometimes contradictory statements
    regarding his efforts to obtain summer employment with
    the New York City Law Department, and about the extent
    to which he notified the New York City Law Department
    regarding the falsehoods presented to them.    He also

                                  6
                                                    No.    2015AP1393-BA


    minimized the significance of the misconduct in which
    he had engaged.

         14. Mr. Jarrett's conduct in connection with his
    efforts to secure summer employment with the New York
    City Law Department was both dishonest and deceptive.
    Such conduct demonstrates that Mr. Jarrett is not
    honest, diligent, or reliable.

         15.   Mr. Jarrett also failed to report three
    speeding tickets on his bar application. The speeding
    infractions occurred in 2009, 2011, and 2014.       Mr.
    Jarrett explained that the reason he failed to report
    those citations was because he forgot about them. The
    Board did not find Mr. Jarrett's explanation regarding
    why he failed to report those tickets to be credible.

         16. In 2006, Mr. Jarrett was arrested in Albany,
    Georgia, on a bench warrant because of his failure to
    appear for two speeding tickets.    As a result of his
    nonappearance, he spent two days in jail.

         17.    Following the receipt of his Georgia
    speeding tickets, Mr. Jarrett claimed that he tried
    contacting the local traffic department and the court
    to change the date of his appearance because it
    conflicted with his college exam schedule.   However,
    Mr. Jarrett admitted that he never wrote a letter or
    sent an e-mail in which he notified the court that he
    had a conflict on the scheduled date of his
    appearance.

         18.    The Board did not find Mr. Jarrett's
    explanations about his misconduct or his omissions on
    his bar application to be plausible or believable. As
    a result, the Board did not find Mr. Jarrett to be a
    credible witness.
    ¶12    Based on its findings, the Board     determined that Mr.

Jarrett failed to establish good moral character and fitness to

practice   law   in   Wisconsin   under   SCR   40.06(1)    and    (3),

concluding:

    Taken as a whole, Mr. Jarrett's conduct suggests a
    pattern of behavior that is both dishonest and
    deceptive. He has not been forthright but has instead

                                  7
                                                                               No.    2015AP1393-BA


      engaged in conduct that demonstrates that he is not
      honest, diligent, or reliable.        Throughout these
      proceedings, Mr. Jarrett has consistently tried to
      minimize the gravity of his offenses.
      ¶13     Mr.    Jarrett          unsuccessfully            sought         review      of    the

Board's adverse determination pursuant to SCR 40.08(6).                                     He now

seeks this court's review.

      ¶14     Mr.    Jarrett      contends            that   the    Board's          findings     are

clearly erroneous and should be rejected by this court. See In

re Bar Admission of Rusch, 171 Wis. 2d 523, 528-29, 492 N.W.2d

153 (1992). Furthermore, he contends that the legal conclusions

reached by the Board are not supported by the record evidence,

and that this court must, after its de novo review, reject the

Board's conclusions of law. See Rippl, 250 Wis. 2d 519, ¶16; In

re Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41

(1987).        Mr.    Jarrett         also    challenges           the     Board's         decision

declining to offer him conditional bar admission pursuant to SCR

§ 40.075(1).           He        references           numerous,         positive        character

references and hours of volunteer service. In sum, he maintains

that he has met his burden of producing information sufficient

to affirmatively demonstrate his present character and fitness.

He asks this court to order his immediate admission, order the

Board to conditionally admit him, or allow him to immediately

re-apply    for      admission         to    the       Wisconsin         bar     without        being

required to take the Wisconsin bar exam.

      ¶15     When this court reviews an adverse determination of

the   Board      pursuant        to    SCR    40.08(7),            we    adopt       the   Board's
findings    of      fact    if    they      are       not    clearly     erroneous.         In    the


                                                  8
                                                                         No.     2015AP1393-BA



Matter of the Bar Admission of Vanderperren, 2003 WI 37, ¶20,

261 Wis. 2d 150, 661 N.W.2d 27. We then determine if the Board's

conclusions of law based on those facts are proper. Id. This

court retains the ultimate authority to determine who should be

admitted to the bar of this state.                        While the Board's experience

in administering the bar admission rules is appreciated, this

court is obligated to make its legal determinations de novo.

Rippl, 250 Wis. 2d 519, ¶¶13, 16.

       ¶16    We    reject    Mr.      Jarrett's          assertion   that      the     Board's

findings are clearly erroneous. Mr. Jarrett disputes the Board's

factual      finding      that      "[Mr.]       Jarrett       exhibited         a     lack   of

candor/credibility           in    applying         for    admission,"     a    finding       Mr.

Jarrett describes as "patently untrue."                       He disputes the Board's

finding      that    he   minimized        the       significance     of       his     conduct,

stating that the Board read too much into the UW misconduct

decision and asserting that the "record shows that [Mr. Jarrett]

realized     his     actions      were    significant,         wrong,      unethical,         and

would impact his character and fitness."                         Mr. Jarrett disputes
the   Board's       finding       that    he    willfully      failed      to    report       the

speeding tickets in his initial bar application.                                He maintains

that he "legitimately forgot" and notes that he answered "yes"

to    Question 21(a)       in      his    bar    application      which         asks    if    the

applicant      has    ever      been     arrested,         charged,   or       issued     civil

citations and adds that he "took corrective steps by providing

the Board with separate addenda explaining the circumstances how

he forgot to list them."                 He thus asserts that he "did not fail


                                                9
                                                                  No.   2015AP1393-BA



to disclose the fact that he had received multiple speeding

tickets and took action to inform the Board."

       ¶17     The Board stands by its finding that Mr. Jarrett was

not credible at the hearing before the Board and when claiming

he    forgot    about    the   three    separate      speeding    violations     from

Georgia, Kentucky, and Wisconsin that he received in 2009, 2011,

and 2013.       The Board reminds the court that the 2013 speeding

violation occurred in Madison three months prior to Mr. Jarrett

filing his bar application with the Board. The Board concedes

that each ticket, standing alone, was not overly concerning, but

finds that failing to include all three was "careless at best

and deliberately deceptive at worst."                 The Board maintains that

Mr. Jarrett has consistently minimized the seriousness of his

behavior by glossing over both the recency and the gravity of

his    conduct,    pointing      not   only    to    statements    from   the    2012

academic       misconduct      proceeding      but    also   statements     at    the

hearing before the Board.

       ¶18     The Board's factual findings essentially derive from
the    undisputed       underlying     academic      misconduct    proceeding     and

from its own credibility determinations at the Board hearing. We

are disinclined to second guess credibility determinations made

by    factfinders. Nothing in this record suggests that it                        was

clearly erroneous for the Board to reject Mr. Jarrett's claim

that he forgot to disclose traffic citations, particularly when

his application was already at-risk for his admitted academic

misconduct. The other factual findings, particularly those based


                                          10
                                                                  No.     2015AP1393-BA



on the Board's credibility determination, also have sufficient

support and are not clearly erroneous.2

      ¶19    We next evaluate the Board's decision not to certify

Mr. Jarrett's character and fitness.

      ¶20    The standards for evaluating an applicant's admission

to the Wisconsin bar are well settled.                    SCR 40.06(1) requires

that applicants for bar admission establish good moral character

and   fitness     to     practice     law.       The   burden     rests     with    the

applicant to establish character and fitness to the satisfaction

of the Board.          See SCRs 40.06(3) and 40.07.            The Appendix to SCR

Ch.   40    contains      the    Board's     rules     that    provide     additional

guidance to the Board and to applicants.

      ¶21    BA 6.01 provides that "[a] lawyer should be one whose

record of conduct justifies the trust of clients, adversaries,

courts and others with respect to the professional duties owed

to them."     That same section notes that "[a] record manifesting

a deficiency in the honesty, diligence or reliability of an

applicant may constitute a basis for denial of admission."
      ¶22    BA   6.02     provides      that     in   determining       whether     an

applicant     possesses         the   necessary    character      and     fitness    to

practice law, 12 factors "should be treated as cause for further

inquiry."         BA    6.02     (Relevant      Conduct   or    Condition).          As


      2
       Mr. Jarrett identifies one factual inaccuracy in the
Board's decision.   The Board's underlying decision states that
Jarrett received a speeding citation in 2014. However, the last
traffic citation Mr. Jarrett received occurred in 2013.    This
error is not material to the Board's decision.


                                           11
                                                                            No.     2015AP1393-BA



relevant,    these       factors      include        a     person's     unlawful       conduct,

academic     misconduct,             false      statements         by       the     applicant,

including     concealment            or   nondisclosure,           and      acts      involving

dishonesty or misrepresentation.                     See id.

       ¶23   BA    6.03        provides         that       in   assigning         weight      and

significance       to    the    applicant's          prior      conduct,      the     following

factors are to be considered:

       (a) the applicant's age at the time of the conduct;

       (b) the recency of the conduct;

       (c)   the    reliability           of    the      information        concerning        the

conduct;

       (d) the seriousness of the conduct;

       (e) the mitigating or aggravating circumstances;

       (f) the evidence of rehabilitation;

       (g) the applicant's candor in the admissions process;

       (h) the materiality of any omissions or misrepresentations;

and

       (i) the number of incidents revealing deficiencies.
See SCR 40 app., BA 6.03.

        ¶24 The     crux       of    this      appeal      is   whether       Mr.     Jarrett's

conduct and actions, taken as a whole, establish that he has the

requisite character and fitness for admission to the bar. When

conducting    our       de    novo    review,        we,    like      the   Board,     use    the

guidelines established in BA 6.02 and BA 6.03.

       ¶25   The    Board       was       not    persuaded         that      Mr.      Jarrett's

academic achievements and his various law-related experiences
were   sufficient        to    warrant       certifying         his    character       at    this
                                                12
                                                                    No.   2015AP1393-BA



time. In response to Mr. Jarrett's explanation that he was under

"immense pressure" to find a job for the summer which led him to

make a "poor decision," the Board stated:

    [A]t no point did Mr. Jarrett identify any such
    specific pressures that may have warranted such
    extreme behavior on his part. Presumably the vast
    majority   of  law   students want   or  need  summer
    employment. Ideally, they would prefer to be employed
    in law-related positions. But few, if any, resort to
    conduct similar to Mr. Jarrett's in order to obtain
    it. His explanation for engaging in conduct of this
    type primarily because he was under pressure is not
    convincing and rings hollow.
    ¶26     As the Board observed, whatever pressures Mr. Jarrett

felt while in law school "are not likely to appreciably diminish

or disappear now that he has graduated."

    ¶27     Having reviewed the record and the Board's specific

findings, we reject Mr. Jarrett's claim that, in making its

decision, the Board focused solely on the 2012 incident.                       We are

persuaded     that   the   Board    duly     considered       all    facets    of   Mr.

Jarrett's application, and its decision was not based solely or

unduly on the 2012         misconduct. See Saganski v. Board of Bar

Examiners, 226 Wis. 2d 678, 595 N.W.2d 631 (1999) (holding that

it is sufficient that the Board consider those BA 6.03 factors

that are applicable to the conduct of the applicant).

    ¶28     Mr.      Jarrett       argues      that      the        BBE's      adverse

determination is inconsistent with this court's resolution of

other   bar    admission       cases.        This     court    has,       on   several

occasions, certified applicants to the bar despite an adverse
determination from the BBE.


                                        13
                                                                       No.   2015AP1393-BA



       ¶29    In     Anderson,       the     court        deemed       the   applicant's

"extremely immature and troubling" behavior "sufficiently remote

in time and not of sufficient gravity to warrant a conclusion

that Mr. Anderson should be forever barred from admission to the

practice of law in this state."                      In the Matter of the Bar

Admission of Anderson, 2006 WI 57, ¶26, 290 Wis. 2d 722, 715

N.W.2d 586.         By the time of his bar application, Mr. Anderson's

record had been unblemished for several years.

       ¶30    In Vanderperren, the Board's refusal to certify Ms.

Vanderperren was based primarily on her "less than forthright

and    complete      responses"      to    questions       on    her   application       for

admission      to    Hamline       University      School       of   Law,    and    on   her

subsequent Wisconsin bar application.                      By the time this court

considered         her    bar    application,       Ms.     Vanderperren        had      been

admitted to practice law in Minnesota, had passed the Wisconsin

bar exam, had voluntarily corrected her bar application, and

several      years       had    elapsed    since    her    last      reported      incident

involving excessive alcohol consumption.                     Vanderperren, 261 Wis.
2d 150, ¶65; see also             Rippl, 250 Wis. 2d 519, ¶3.

       ¶31    Mr. Jarrett reminds the court that here, "[m]ore than

two years elapsed between the academic misconduct and the date

of the Board's hearing, and more than three years have elapsed

as of today." Indeed, as of the date of this court's decision,

nearly four years have passed.                     Mr. Jarrett argues that now,

sufficient time has passed and he should be admitted to practice

law.


                                             14
                                                                       No.    2015AP1393-BA


      ¶32    The Board was right to be deeply concerned by Mr.

Jarrett's dishonesty, which cannot fairly be characterized as

"youthful         excesses     and     mistakes"        and     is     different        from

indiscretions        arising       from     immature      behavior       coupled        with

situational or pervasive substance abuse that has since been

addressed.

      ¶33    Still, a majority of this court has determined that

denying Mr. Jarrett admission to the bar is simply too harsh a

penalty     under    the     circumstances        presented.      We    appreciate       the

time-consuming        and      difficult         job    the     Board        performs      in

conducting its character and fitness investigations.                           Indeed, we

find no fault with the Board's findings or reasoning in this

case.       The    Board     serves   the    critically         important      role   as    a

gatekeeper to admission to the bar.                    Ultimately, however, we are

persuaded that, subject to the imposition of certain conditions,

Mr. Jarrett may safely be admitted to the practice of law.

      ¶34    While not excusing his actions, we are mindful that

Mr.     Jarrett     has    faced      difficult        family    circumstances          that

imposed     considerable        pressure         on    him,     both    financial       and

otherwise. His goal of becoming a lawyer has now been delayed

several years, and his prospect of ever obtaining bar admission

has been uncertain.            By his own admission, his actions in law

school have caused him significant obstacles, embarrassment, and

financial difficulties.

                                            15
                                                                            No.     2015AP1393-BA


       ¶35     In        the     nearly     four         years      since        his    academic

misconduct, Mr. Jarrett has completed unpaid legal internships

and        meaningful          legal    volunteer         work      serving        economically

challenged clients, has mentored students, and currently works

in a public trust position in Washington, D.C. Employers and

professors who have worked closely with Mr. Jarrett speak highly

of    him     as    an    individual,       and     of    his      sincere       commitment     to

justice.       The       many     letters     reflect          a    consistent         theme    of

admiration         for     Mr.    Jarrett's       work     ethic,      judgment,        and    his

compassion.         We therefore choose to exercise our prerogative and

afford this applicant the benefit of the doubt.3

       ¶36     Accordingly,            we   direct       the       Board    to    certify      Mr.

Jarrett's admission to practice law in Wisconsin.                                 Mr. Jarrett's

admission to the practice of law in Wisconsin is contingent on

his compliance with certain requirements set forth in this order

as well as certain conditions on his license to practice law.

Specifically, we direct the Office of Lawyer Regulation (OLR) to

identify and appoint a practice monitor to serve as a mentor to

Mr. Jarrett and to supervise and oversee Mr. Jarrett's practice

of law and related professional activities for a period of two



       We accept the Board's determination that conditional
       3

admission pursuant to SCR 40.075(1) was not appropriate here.
This does not preclude this court from imposing its own
conditions on Mr. Jarrett's license to practice law.


                                               16
                                                                                No.     2015AP1393-BA


years        following       the        practice       monitor's          appointment.               The

practice monitor shall be licensed to practice law in Wisconsin

and     be    located        in    the        region       of     Mr.    Jarrett's           place     of

employment or residence.

      ¶37      Upon Mr. Jarrett's admission to the practice of law in

Wisconsin and his enrollment with the State Bar of Wisconsin

pursuant to SCR 10.03(2), Mr. Jarrett is directed to initially

elect inactive membership status.                               See SCR 10.03(3)(a). This

will afford the OLR time to identify a practice monitor and will

obviate       the     need    for        Mr.    Jarrett           to    bear     the        costs    and

obligations of monitoring before he assumes the active practice

of law.

      ¶37      When     the       OLR    advises       Mr.        Jarrett       that    a     practice

monitor       has   been      identified,            Mr.     Jarrett          may,    with     written

notice to the OLR, change his classification to active status by

complying with SCR 10.03(3)(b)1. The formal appointment date of

the     monitor       will        be     the    date        Mr.       Jarrett        elects     active

membership in the State Bar pursuant to SCR 10.03 (3)(b)1.

      ¶38      We   direct         Mr.    Jarrett          to     cooperate          with    the     OLR,

cooperate        with        his        practice        monitor,              comply        with      all

requirements        imposed            upon    him     by       the     OLR    relating        to     his

monitoring including executing, within five days of the date he

elects active membership, a written monitoring agreement setting

forth the terms of Mr. Jarrett's monitoring as determined by the

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practice monitor.    Mr. Jarrett shall comply with all reasonable

requests of his practice monitor4 and shall bear the reasonable

costs of such monitoring.

      ¶39   Upon appointment, the monitor shall report to the OLR,

in writing, on a quarterly basis.        Within thirty days prior to

the expiration of the two-year monitoring period, the OLR shall

file a report in this court in which it shall recommend to the

court that the conditions on Mr. Jarrett's admission be allowed

to terminate or be extended.

      ¶40   Should Mr. Jarrett fail to make a good faith effort to

satisfy these conditions, or should he commit misconduct during

the   monitoring   period,   his   license     to   practice   law   may    be

suspended or revoked and he may be subject to other discipline

pursuant to the Rules of Professional Conduct for Attorneys.

      ¶41   IT IS ORDERED that the decision of the Board of Bar

Examiners   declining   to   certify    that    Joshua   E.    Jarrett     has

satisfied the requirements for admission to the practice of law

in Wisconsin is reversed and the matter is remanded to the Board

for further action consistent with this order.



      4
       Lawyer monitoring often requires a lawyer to undergo an
AODA   (alcohol  and   other   drug  abuse)   assessment  and/or
psychological evaluation. The record before this court is devoid
of evidence suggesting these assessments are needed here. They
should not be imposed absent evidence that would warrant such
conditions.


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    ¶42    IT IS FURTHER ORDERED that Joshua E. Jarrett                              shall

comply with the directives set forth in this order and shall,

promptly   upon     receipt   of    this       order,    provide    the    Office      of

Lawyer   Regulation    with    a    copy   of     the    entire    record       in    this

matter   and   authorize      the   OLR    to    share     the    record       with   the

practice monitor.

    ¶43    IT IS FURTHER ORDERED that subject to the required

disclosures    to   the   Office     of    Lawyer       Regulation       and   practice

monitor as set forth herein, the documents submitted under seal

are deemed confidential, and will be maintained under seal until

further order of the court.




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     ¶44    DAVID    T.   PROSSER,   J.      (concurring).            This    is    an

unusual and difficult case that has divided the court.                       I write

separately to explain my thinking.

     ¶45    The court finds no fault in the decision of the Board

of   Bar   Examiners      (Board)    not     to     certify        Joshua    Jarrett

unconditionally for membership in the Wisconsin bar.                         We also

understand the Board's determination that Mr. Jarrett did not

qualify    for    conditional   admission         under    SCR     40.075    because

"[o]nly    an    applicant   whose    record       of     conduct     demonstrates

documented      ongoing   recovery   [from    such        problems    as     drug   or

alcohol dependency] and an ability to meet the competence and

character and fitness requirements set forth in SCR 40.02 may be

considered for conditional admission."               SCR 40.075(1) (emphasis

added).    The Board reasoned that Mr. Jarrett did not meet the

character and fitness requirements of the rule and that the rule

has no provision for demonstrating the "ongoing recovery" of an

applicant's character and fitness.

     ¶46    Admittedly, the Board did "not foreclose [Mr. Jarrett]

from ever practicing law in Wisconsin."                    He could, the Board
said, take a bar examination pursuant to SCR 40.04.                            But a

majority of the court believes this option is not satisfactory

on the facts of the case.

     ¶47    Mr. Jarrett graduated from the University of Wisconsin

Law School in mid-2014.         He has been out of law school now for

two years.       He presently lives in Maryland and works in a non-

legal capacity in the District of Columbia.

     ¶48    To take the Wisconsin bar exam, Mr. Jarrett would have
to come to Wisconsin, and he would likely have to enroll in a

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Wisconsin       bar    review    course      to      prepare     for       the   examination.

Passing the exam would reaffirm his legal competence——which is

not     in    dispute——but       it      would       not    necessarily          enhance     his

"character and fitness" or assure that the Board would grant him

certification.

       ¶49     As an alternative, Mr. Jarrett could take a bar exam

in the District of Columbia, Maryland, or his home state of

Georgia.       Superficially, one of these options might appear more

convenient, but they would all be time consuming and costly and

would not assure his admission in one of those jurisdictions so

long     as     the    denial       of     his       Wisconsin     admission          remained

unchanged.

       ¶50     In my view, the fundamental question facing the court

is whether it is possible to permit Mr. Jarrett to practice law

now,     under    reasonable          conditions,          without      depreciating         the

seriousness       of    his   misconduct.             If    we   answer       this    question

"yes," we risk criticism that we have damaged the reputation and

integrity of the legal profession.                         If we answer the question

"no,"    however,       we    may     be   precluding        Mr.     Jarrett       from    ever
practicing law.

       ¶51     There may be risks in our decision.                           But intelligent

risk-taking often yields spectacular rewards.                                 I believe Mr.

Jarrett has the ability to be a superb attorney, and he has

demonstrated the desire to serve others.                         This court expects Mr.

Jarrett to vindicate the high hopes we have in him.                                   It will

surely remember if he does not.

       ¶52     Courts cannot succeed for long if they are unable to
leaven       justice   with     mercy.       By      fashioning        a     unique   form    of

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conditional admission, we practice that principle in the present

case.

    ¶53   For the reasons stated, I respectfully concur in the

opinion of the court.

    ¶54   I   am   authorized   to   state   that   Justice   ANN   WALSH

BRADLEY and Justice REBECCA G. BRADLEY join this concurrence.




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      ¶55    PATIENCE        DRAKE     ROGGENSACK,           C.J.      (dissenting).         I

would affirm the final decision of the Board of Bar Examiners

(Board) declining to certify Joshua E. Jarrett's character and

fitness for admission to the Wisconsin bar.                           I am persuaded by

the Board's finding that Mr. Jarrett's conduct in connection

with his efforts in 2012 to secure summer employment with the

New York City Law Department was both dishonest and deceptive
and that such conduct demonstrates that Mr. Jarrett has acted in

a manner that is not honest, diligent, or reliable.                                   Coupled

with the Board's finding that Mr. Jarrett was not credible at

the evidentiary hearing before the Board and when claiming he

forgot      to   disclose          three   fairly       recent        separate       speeding

violations       from    Georgia,      Kentucky,        and    Wisconsin,       I    conclude

that there are simply too many incidents in which Mr. Jarrett

considered the truth optional when it was not to his advantage.

      ¶56    Based      on    the    record         before    this     court,    I    am   not

persuaded that Mr. Jarrett has demonstrated the requisite moral

character and fitness "needed to assure to a reasonable degree of

certainty the integrity and the competence of services performed

for   clients      and       the    maintenance        of     high    standards       in   the

administration of justice."                 SCR 40.06.               I would affirm the

Board's decision.
      ¶57    I    am     authorized        to       state     that     Justices      ANNETTE

KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.




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