                                                        2017 WI 55

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2016AP1776-BA
COMPLETE TITLE:        In the Matter of the Bar Admission
                       of Charles A. Nichols.

                       Charles A. Nichols,
                                 Petitioner,
                            v.
                       Board of Bar Examiners,
                                 Respondent.

                                   BAR ADMISSION OF NICHOLS

OPINION FILED:         June 2, 2017
SUBMITTED ON BRIEFS:   February 20, 2017
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:          ABRAHAMSON, J. concurs, joined by A.W. Bradley,
                       J.
  DISSENTED:
  NOT PARTICIPATING:


ATTORNEYS:


       For the petitioner, there were briefs filed by Tamara B.
Packard, A.J. Grund and Pines Bach LLP, Madison.


       For the Board of Bar Examiners, there was a brief filed by
Jacquelynn B. Rothstein, Director & Legal Counsel.
                                                                               2017 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.    2016AP1776-BA


STATE OF WISCONSIN                                   :            IN SUPREME COURT

In the Matter of the Bar Admission of
Charles A. Nichols:


Charles A. Nichols,                                                         FILED
            Petitioner,                                                 JUN 2, 2017
      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 Supreme

Court Rule (SCR) 40.08(7), of the final decision of the Board of

Bar Examiners (Board) declining to certify that the petitioner,

Charles     A.   Nichols,       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. Nichols

satisfied the character and fitness requirements for admission
to    the   Wisconsin     bar    was       based     primarily        on    Mr. Nichols'
                                                                         No.      2016AP1776-BA



academic misconduct during his third year in law school and his

failure    to    disclose       certain        matters   on    his       bar     application.

After careful review, we reverse and remand the matter to the

Board for further proceedings.

    ¶2      We       appreciate      the       Board's       concern       regarding          this

applicant.       We appreciate the thorough investigation the Board

conducted       into        Mr. Nichols'        background         and     past        conduct.

Mr. Nichols' application raised significant questions 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 positive character evidence to warrant

our conclusion that Mr. Nichols may be admitted to the practice

of law in Wisconsin, albeit with conditions.                               Accordingly, we

reverse.

    ¶4      Mr. Nichols         began      law      school    at     the    University         of

Wisconsin       in    the    fall    of    2012.         In    the     summer       of    2014,

Mr. Nichols obtained a summer internship with the Office of the
Lieutenant Governor.            This internship was unpaid, so Mr. Nichols
                                                2
                                                                         No.     2016AP1776-BA



also worked nights and weekends at a restaurant, 35 to 40 hours

per week.     The Lieutenant Governor's office offered him a paid

position at the end of the summer of 2014.

       ¶5    During the fall of 2014, his third year in law school,

Mr. Nichols struggled to manage his work, volunteer service, and

academic coursework.           He began to neglect his academic work,

including a Law of Democracy course.                    The grade for the course

was almost solely based on a thirty-page research paper due at

the end of the semester.             The syllabus for the course stated

that plagiarism would result in a failing grade.

       ¶6    Mr. Nichols submitted a final paper.                          The professor

used    an   anti-plagiarism        software          program      to      check     student

papers.      The    report    revealed         that    Mr. Nichols'             final   paper

contained extensive language copied verbatim or nearly verbatim

from four published law review articles, without citations.                                The

repetition    and    nature    of    the       matches       led    the        professor    to

conclude     that     this     could       not        have        been         coincidental.

Mr. Nichols did not credit, in any form, the four law review
articles from which he obtained the passages.                              The professor

concluded that large portions of Mr. Nichols' final paper were

plagiarized.

       ¶7    On January 15, 2015, the professor convened a meeting

with    Mr. Nichols,    the     director        of     student      affairs,         and    an

associate dean.        When confronted with the apparent plagiarism,

Mr. Nichols    "told    them    immediately           how    he    had     developed       the

paper [with extensive cutting and pasting], and with complete


                                           3
                                                           No.    2016AP1776-BA



candor."    Mr. Nichols admitted that his paper was "a mess" but

said that he did not intentionally commit plagiarism.

     ¶8     The law school determined that Mr. Nichols had engaged

in academic misconduct by submitting a paper that was copied in

substantial part from several existing legal publications with

no attribution in violation of UWS 14.03(1)(a).1           This conclusion

is reflected in a letter from              the professor   to    Mr. Nichols,

dated January 23, 2015:

     During our meeting, you confirmed that you drew
     material from these sources—in particular, the [law
     review] article.     You further explained that your
     research and note-taking process involved cutting and
     pasting passages from [the law review article] and
     other sources, and you acknowledged that, in your rush
     to   finish   the   paper,    you    may   have    (perhaps
     unintentionally) reproduced some of those passages
     without   quotation    marks,     citations,    or    other
     attribution.
As a sanction, Mr. Nichols received a failing grade on the paper

and in the course.    The UW-Madison Dean of Students' Office also

reviewed    the   matter   and    imposed      an   additional        sanction,

requiring   Mr. Nichols    to   take   an    on-line   course    on    academic

integrity and research methods.            Mr. Nichols did so, and passed

the exam.

     ¶9     In the spring of 2015, his final year, Mr. Nichols

failed his required Professional Responsibility course because

     1
       UWS 14.03(1)(a) provides: "Academic misconduct is an act
in which a student [s]eeks to claim credit for the work or
efforts of another without authorization or citation."




                                       4
                                                                  No.    2016AP1776-BA



he failed to comply with the attendance policy; a student who

received    more       than   three   unexcused       absences    would    fail   the

course.     Mr. Nichols retook the course and graduated from law

school in December 2015.

      ¶10    On    March      23,   2015,       Mr. Nichols    submitted    his   bar

application       to   the    Board   pursuant      to   the   diploma    privilege,

SCR 40.03.        He    disclosed     the   academic     misconduct.        However,

during the ensuing standard character and fitness review, the

Board identified a number of discrepancies and omissions in his

bar application, including:

     Mr. Nichols had failed to report three underage
      drinking citations on his law school application.   He
      did report them on his bar application.    Mr. Nichols
      later explained that he did not "intend to purposely
      mislead."    He subsequently amended his law school
      application, and was informed the information would
      not have affected his admission.

     Mr. Nichols failed to include on his bar application
      information regarding a 2007 eviction case in which he
      was named as a party. He had no actual involvement in
      the case.     A former roommate owed rent and all
      roommates were listed as parties to the action.     The
      matter was resolved without Mr. Nichols' involvement.

     Mr. Nichols failed to disclose on his bar application
      that in 2008, he sought and obtained a restraining
      order against a former girlfriend, for her harassment
      of him.

     Mr. Nichols failed to include information on his bar
      application regarding a citation he received on
      March 18, 2009 for an alleged absolute sobriety
      violation.   Mr. Nichols explained that the citation
      was dismissed because testing revealed no detectible
      level of alcohol.




                                            5
                                                                            No.     2016AP1776-BA



Mr. Nichols amended his bar application on January 27, 2016 in

response to the Board's inquiries.                      He said these omissions were

accidental.

    ¶11     On April 11, 2016, the Board informed Mr. Nichols that

his bar application was at risk of being denied for failing to

establish    his    good     moral       character            and    fitness       within     the

meaning   of     SCR 40.06(1)          and   Bar        Admission          Rule    (BA)     6.01.

Mr. Nichols requested a hearing.

    ¶12     The Board conducted a hearing on June 10, 2016, at

which   Mr. Nichols       appeared       and       testified.               He    also    offered

character      witnesses         including          his        colleague           and     former

supervisor     Attorney      Daniel       Suhr,         Chief       of     Staff    and    Legal

Counsel to the Lieutenant Governor.                      Attorney Suhr stated he is

"absolutely       convinced        that       [Nichols]              has     the        requisite

integrity,     diligence,        and    judgment         to    serve        his    clients   and

community    well    as     an    attorney         in    the        State    of    Wisconsin."

Professor        Robert     Yablon,          the        professor           who     identified

Mr. Nichols'      academic       misconduct,        also        supported          Mr. Nichols'
admission to the bar, stating that he feels Mr. Nichols has been

punished enough.

    ¶13     On     August    4,     2016,         the     Board       issued       an     adverse

decision concluding that Mr. Nichols failed to establish good

moral character and fitness to practice law in Wisconsin under

SCR 40.06(1) and (3).            The Board's decision stated, inter alia:

    In short, Mr. Nichols engaged in a blatant display of
    plagiarism.  By submitting a paper in connection with
    his Law of Democracy course in which he failed to
    include four separate sources from which he quoted

                                              6
                                            No.   2016AP1776-BA


extensively, and which accounted for over half of the
paper, Mr. Nichols was both dishonest and deceptive.
His conduct demonstrates that he is not honest,
diligent, or reliable.

The very next semester, Mr. Nichols took Professional
Responsibility, a required law school course, for
which he received a failing grade.      In the course
syllabus,   the   attendance   policy  was   outlined.
According to Mr. Nichols, the policy stated that
students who missed more than three (3) classes would
receive a failing grade. Mr. Nichols readily conceded
that he was aware of that professor's attendance
policy but that he missed several classes because of
"workload and stuff."   Despite having been sanctioned
for plagiarism the prior semester, Mr. Nichols still
thought that the attendance policy was somehow
"subject to change" and would therefore not be
applicable to him.   His attitude evinces a disregard
for rules and authority, and is especially concerning
given its close proximity to his plagiarism incident.
It suggests a pattern of problematic behavior in which
Mr. Nichols does not believe that certain rules and
requirements apply to him.

Additionally, Mr. Nichols failed to disclose three
underage drinking citations to the University of
Wisconsin Law School which he reported on his bar
application.   In an amendment to his bar application,
Mr. Nichols explained that because the citations no
longer appeared on file in the county in which they
were issued, he did not believe that he was required
to report them.     He went on to explain that "not
having gone to law school and not knowing any
attorneys" he "just missed" some things on his law
school   application.     The   Board   did   not find
Mr. Nichols' explanation for failing to disclose the
underage drinking citations to be persuasive.

Mr. Nichols also failed to disclose a citation for an
absolute sobriety violation, and two civil actions.
The   first  civil   matter  involved  him   filing   a
restraining order against a former girlfriend.      The
second involved an eviction matter.        Mr. Nichols
claimed that it was a "misunderstanding" on his part
as to why he had not included them in his application
to the bar.       However, the Board did not find
Mr. Nichols' explanations for failing to include these
                           7
                                                      No.     2016AP1776-BA


    items in his       bar   application   to   be   credible      or
    convincing.

    It appears as if Mr. Nichols has engaged in a pattern
    of behavior in which he disregards certain rules and
    authority   to    suit   his    needs.       Mr. Nichols'
    explanations about his academic misconduct in addition
    to his omissions on his bar application and his law
    school   application    were   neither    plausible   nor
    believable. Thus, the Board did not find him to be a
    credible witness.    Other than his employment, which
    Mr. Nichols seemed strongly focused upon—much to the
    detriment of his academic work, there does not appear
    to have been any other rehabilitative efforts on his
    part which would bolster or establish his required
    character or fitness for admission to the Wisconsin
    bar.    Mr. Nichols' employment is not a sufficient
    demonstration    of   rehabilitation   to    offset   his
    troubling conduct.    Moreover, his academic misconduct
    occurred during his third year of law school, at which
    point   he   unquestionably   should   have   known   and
    understood the wrongfulness of committing plagiarism.

    When his omissions are coupled with his plagiarism, a
    clear picture emerges wherein disclosures which are
    not   to   Mr. Nichols'   advantage  are  necessarily
    withheld.   Such conduct is of grave concern to the
    Board causing it to wonder how Mr. Nichols would
    prevent such behavior in the course of dealing with
    clients in a future legal practice.

    ****

    Mr. Nichols' various explanations for engaging in
    conduct of this type are neither convincing nor
    persuasive.   Mr. Nichols has minimized his behavior,
    providing excuses at every turn for his actions.   He
    engaged in intentional and wrongful conduct which
    demonstrates a lack of character and fitness on his
    part.
(Record   citations   omitted).   Mr. Nichols    seeks      this   court's

review.

    ¶14    Mr. Nichols first contends that several of the Board's
findings are clearly erroneous and should be rejected by this


                                  8
                                                                          No.    2016AP1776-BA



court.        See In re Bar Admission of Rusch, 171 Wis. 2d 523, 528-

29, 492 N.W.2d 153 (1992).                 He also contends that the Board's

legal conclusions 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).        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    reverse   the

Board's adverse decision.

       ¶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 re 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 in Wisconsin.        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. Nichols' assertion that the challenged

Board findings are clearly erroneous.                        Mr. Nichols challenges

the Board's factual finding that "[b]y submitting a plagiarized

paper     in     connection        with    his    Law        of     Democracy         course,

Mr. Nichols was both dishonest and deceptive."                        Mr. Nichols says
that the record does not support the finding that he was ever
                                            9
                                                                             No.     2016AP1776-BA



"dishonest" or "deceptive."                 He says that "nothing in the record

supports the Board's contention that Mr. Nichols' conduct was

intended to deceive or serves as evidence of dishonesty."                                         He

also     disputes     the        Board's     finding          that     he    "minimized         the

significance of the misconduct in which he had engaged."

       ¶17   The     Board       stands     by     its     findings.           It    found      that

Mr. Nichols was not credible when explaining his conduct and the

omissions     on     his    bar       application        at    the     hearing       before      the

Board.       The Board maintains that Mr. Nichols has consistently

minimized the seriousness of his behavior and contends that this

"record      clearly        reveals         that      Mr. Nichols           has      a     serious

credibility problem."

       ¶18   The Board's factual findings essentially derive from

the facts of the undisputed underlying academic misconduct and

omissions      on     his        bar    application,            coupled       with        its   own

credibility determinations made 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 not to accept Mr. Nichols'

explanations        for    his     plagiarism         or      his    failures       to    disclose

certain matters on his bar application.                               The Board's factual

findings, particularly those based on the Board's credibility

determinations,           have    sufficient          support        and    are     not    clearly

erroneous.

       ¶19   We      next        evaluate         the      Board's          conclusion          that

Mr. Nichols         failed       to     satisfy         the     character           and    fitness
requirements for admission to the Wisconsin bar.
                                                 10
                                                                     No.    2016AP1776-BA



       ¶20    The standards for evaluating an applicant's admission

to    the    Wisconsin     bar    are    well      settled.     Supreme     Court   Rule

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    Bar Admission 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    Bar       Admission      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 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    Bar Admission 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
                                              11
                                                                 No.    2016AP1776-BA



      (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

      (i) the number of incidents revealing deficiencies

See SCR 40 app., BA 6.03.

      ¶24   When   conducting       our    de    novo     review,    we,   like    the

Board, use the guidelines established in BA 6.02 and BA 6.03.

      ¶25   Although both parties address each of these factors,

the crux of Mr. Nichols' argument is that he committed a "single

instance      of      academic      misconduct           that   developed         from

carelessness, not intent."               He concedes this was serious but

contends that it is not substantial enough to warrant denial of

his admission to the bar.            He claims that the Board "ignored"
other relevant evidence that reflects his good character, such

as his positive character references from employers.

      ¶26   The Board maintains that it considered all facets of

Mr. Nichols' application.        It observes that most of Mr. Nichols'

positive conduct is linked to his recent employment.                       The Board

determined that his negative conduct, coupled with his lack of

candor and credibility, substantially outweighed his positive

conduct.      Contrary to certain assertions in Mr. Nichols' brief,
the   Board    does    not   seek    to        forever    bar   Mr. Nichols       from
                                          12
                                                                           No.       2016AP1776-BA



admission     to    the     practice      of    law     in       Wisconsin.              The     Board

suggests he could reapply pursuant to SCR 40.04 after a year.

The court has used this or a similar mechanism in the past,

typically     when       the    court    deemed       it    appropriate             to    defer      an

applicant's        admission.           See,    e.g.,       In    re     Bar       Admission         of

Gaylord,     155    Wis. 2d       816,    456     N.W.2d      590       (1990);          In    re   Bar

Admission of Saganski, 226 Wis. 2d 678, 78-80, 595 N.W.2d 631

(1999).

      ¶27    Mr. Nichols           argues           that      the         Board's              adverse

determination is inconsistent with this court's resolution of

other bar admission cases, most notably and recently, In re Bar

Admission     of     Jarrett,        2016       WI     39,       368      Wis. 2d 567,              879

N.W.2d 116.        See also, In re Bar Admission of Anderson, 2006 WI

57,   ¶26,    290    Wis. 2d 722,         715       N.W.2d       586;    Vanderperren,              261

Wis. 2d 150, ¶65; Rippl, 250 Wis. 2d 519.

      ¶28    The     most       factually       analogous          case       is     our        recent

decision in Jarrett.              Mr. Jarrett committed academic misconduct

after his first year in law school.                              He     sent a resume and
unofficial transcript to a potential employer, containing false

information        and    inflated       grades.           Jarrett,       2016       WI       39,   ¶6.

Mr. Jarrett also failed to disclose in his bar application that

he    had    received          several    traffic          violations.               This       court

ultimately opted to admit Mr. Jarrett, with conditions.

      ¶29    Here, as in Jarrett, we emphasize that the Board acted

reasonably in questioning                Mr. Nichols'            character and fitness,

and   conducted      its       review    in    accordance         with        the    established
standards.          Bar    Admission       6.02      provides          that    both           academic
                                               13
                                                               No.     2016AP1776-BA



misconduct     and     false     statements      (including         nondisclosure)

"should be treated as cause for further inquiry."                        (Emphasis

added.)      The    record    reflects    that   the   Board    considered      the

factors set forth in BA 6.03; particularly the recency of the

conduct, which occurred during his final year of law school,

(6.03(b)), its seriousness (6.03(d)), and the applicant's candor

in the admissions process (6.03(g)).              See SCR 40 app, BA 6.03

(a)-(i).     The Board expressed very reasonable concern about a

pattern     "wherein    disclosures      which   are   not     to     Mr. Nichols'

advantage are necessarily withheld."             The Board explicitly found

that "Nichols' employment is not a sufficient demonstration of

rehabilitation to offset his troubling conduct."

      ¶30    The Board serves the critically important role as a

gatekeeper to admission to the bar.              The Board was right to be

deeply concerned by Mr. Nichols' record.               Still, as in Jarrett,

this court has reviewed this record and has opted to afford this

applicant     the    benefit     of    the    doubt.     We     conclude       that

Mr. Nichols can be admitted to the practice of law, subject to
the   imposition       of    certain   conditions.2       In     reaching      this

conclusion we are influenced by the fact that employers who work

closely with Mr. Nichols speak highly of him as an individual,

and of his work ethic.            The omissions on his bar application

were careless, but the items omitted do not, themselves, reflect

      2
        We accept the Board's determination that conditional
admission pursuant to SCR 40.075(1) was not appropriate here.
This does not preclude this court from imposing its own
conditions on Mr. Nichols' license to practice law.


                                         14
                                                                      No.    2016AP1776-BA



poorly on Mr. Nichols' character.                  We are also influenced by the

fact    that    the    professor       of    the     class    in    which   Mr. Nichols

committed academic misconduct supports his admission to the bar.

The professor noted that Mr. Nichols had been "forthright in

acknowledging his errors and accepting responsibility," and that

he seems genuinely contrite.                 The professor noted further that

Mr. Nichols "has paid a real price for his actions, with an F on

his transcript and his misconduct made the admission process

vastly more time consuming, expensive, and stressful."

       ¶31     Accordingly,       we        direct     the     Board        to     certify

Mr. Nichols'          admission        to     practice        law      in        Wisconsin.

Mr. Nichols' admission to the practice of law in Wisconsin is

contingent on his compliance with certain requirements set forth

in this decision as well as certain conditions on his license to

practice law.

       ¶32     We direct the Office of Lawyer Regulation (OLR) to

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

Mr. Nichols and to supervise and oversee Mr. Nichols' practice
of law and related professional activities for a period of two

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. Nichols' place of employment

or residence.

       ¶33     Upon Mr. Nichols' admission to the practice of law in

Wisconsin and his enrollment with the State Bar of Wisconsin

pursuant to SCR 10.03(2), Mr. Nichols is directed to initially
elect inactive membership status.                    See SCR 10.03(3)(a).              This
                                             15
                                                                      No.     2016AP1776-BA



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

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

obligations of monitoring before he assumes the active practice

of law.

      ¶34   When     the       OLR   advises     Mr. Nichols         that     a    practice

monitor has been identified, Mr. Nichols shall execute a written

monitoring agreement setting forth the terms of Mr. Nichols'

monitoring as determined by the practice monitor.                             Mr. Nichols

may   then,       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. Nichols elects active membership in the

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

      ¶35   We     direct       Mr. Nichols      to     cooperate      with       the    OLR,

cooperate     with       his    practice      monitor,        and    comply       with    all

requirements       imposed       upon   him     by    the     OLR    relating       to   his

monitoring.         Mr.       Nichols   shall        comply    with    all        reasonable

requests of his practice monitor and shall bear the reasonable
costs of monitoring.3

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

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

      3
       Lawyer monitoring often requires a lawyer to undergo an
AODA   (alcohol  and   other   drug  abuse)   assessment  and/or
psychological evaluation.    The record in this case does not
appear to warrant such conditions and they should not be imposed
here.   In the event such conditions appear necessary, the OLR
shall provide Mr. Nichols with notice and an opportunity to be
heard.


                                           16
                                                                      No.    2016AP1776-BA



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. Nichols' admission be allowed

to terminate or be extended.

      ¶37   Should Mr. Nichols 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.

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

Examiners      declining    to   certify         that    Charles      A.    Nichols       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 decision.

      ¶39   IT IS FURTHER ORDERED that Charles A. Nichols shall

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

promptly upon receipt of this decision, 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.

      ¶40   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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       ¶41    SHIRLEY          S.    ABRAHAMSON,     J.       (concurring).            I   write

separately to provide some context                         for      ¶40 of this opinion,

which    may       be    confusing       for    those         who    are     not    thoroughly

conversant with our court rules.                         The paragraph provides 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."

       ¶42    Persons seeking admission to practice law in Wisconsin

must file an application with the Board of Bar Examiners (BBE).

See SCR 40.14.                The information an applicant must disclose to

the BBE is extensive and some of it is highly personal.                                      For

this reason, SCR 40.12 provides that the "application files of

an    applicant         and    all    examination        materials      are    confidential.

The supreme court or the board may authorize the release of

confidential information to other persons or agencies."

       ¶43    When an applicant asks this court to review an adverse

determination from the BBE, SCR 40.08(7), the record submitted
to this court typically contains the applicant's bar application

and related documents, which comprise the "application file."

Consistent with our rule, material from the application file is

confidential and is not available to the public, absent a court

order.        In    this       matter,    the   applicant,           himself,       voluntarily

opted to include in the appendix to his appellate brief some

items from his bar application, including certain amendments to

his     bar    application.              When       an    applicant          does    not   file



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confidential material under seal with this court, a question may

arise whether confidentiality is waived.

    ¶44   I   am   authorized   to   state   that   Justice   ANN   WALSH

BRADLEY joins this concurrence.




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