                                                                2015 WI 80

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:                1997AP3862-D & 1996AP3390-D
COMPLETE TITLE:          In the Matter of Medical Incapacity Proceedings
                         Against Nancy A. Schlieve, Attorney at Law.

                         Board of Attorneys Professional Responsibility ,
                         n/k/a
                         Office of Lawyer Regulation,
                                    Complainant-Appellant-Respondent-
                         Respondent,
                               v.
                         Nancy A. Schlieve,
                                    Respondent-Respondent-Petitioner-
                         Appellant.




                          MEDICAL INCAPACITY PROCEEDINGS AGAINST SCHLIEVE

OPINION FILED:           July 15, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 9, 2015

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

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

ATTORNEYS:
       For    the       respondent-respondent-petitioner-appellant,   there
were briefs by Nancy Schlieve, Eau Claire, and oral argument by
Nancy Schlieve.


       For    the      complainant-appellant-respondent-respondent,   there
was a brief by Wayne A. Arnold, Rice Lake, and oral argument by
Wayne A. Arnold.
2
                                                                   2015 WI 80
                                                           NOTICE
                                             This opinion is subject to further
                                             editing and modification.   The final
                                             version will appear in the bound
                                             volume of the official reports.
Nos.    1997AP3862-D
        1996AP3390-D


STATE OF WISCONSIN                       :            IN SUPREME COURT

In the Matter of Medical Incapacity Proceedings
Against Nancy A. Schlieve, Attorney at Law.

Board of Attorneys Professional Responsibility,
n/k/a Office of Lawyer Regulation,
                                                                FILED
             Complainant-Appellant-Respondent-
             Respondent,                                   JUL 15, 2015
       v.                                                     Diane M. Fremgen
                                                           Clerk of Supreme Court
Nancy A. Schlieve,

             Respondent-Respondent-Petitioner-
             Appellant.




       ATTORNEY reinstatement proceeding.     Reinstatement denied.


       ¶1    PER CURIAM.   Nancy A. Schlieve has appealed from a
referee's report recommending the denial of Attorney Schlieve's
petition for reinstatement of her license to practice law in
Wisconsin.     Attorney Schlieve argues that the medical incapacity
which resulted in the suspension of her law license has been
removed and that she is fit to resume the practice of law.
                                                                           Nos.   1997AP3862-D
                                                                                  1996AP3390-D


        ¶2    After careful consideration of the matter and after
hearing oral argument, we conclude that Attorney Schlieve has
failed       to     meet      her      burden        under     Supreme        Court        Rule
(SCR) 22.36(6) to show by clear, satisfactory, and convincing
evidence that she is currently fit to resume the practice of
law.     Accordingly, we deny her reinstatement petition.                               We also
find it appropriate to impose the full amount of costs of this
reinstatement proceeding, which are $20,367.49 as of January 29,
2015.
        ¶3    Attorney       Schlieve       was     licensed       to    practice       law   in
Wisconsin in 1990.              In 1997, this court imposed conditions on
her license directed toward her rehabilitation from alcoholism.
See     In   re     Medical      Incapacity         Proceeding          Against     Schlieve,

Case No.     96-3390-D,         212    Wis.    2d    693,    569     N.W.2d   593       (Table)
(1997).        In    1998,      this    court       suspended      Attorney       Schlieve's
license      due    to    her    medical       incapacity       of      alcoholism.           The
suspension        was    imposed      for     an    indefinite       time.        See    In    re
Medical      Incapacity       Proceedings          Against   Schlieve,        221    Wis.      2d

610, 585 N.W.2d 585 (1998).
        ¶4    In 2006, Attorney Schlieve filed a petition seeking
the reinstatement of her license to practice law.                                 This court
denied reinstatement on the grounds that Attorney Schlieve had
failed to meet her burden of proving "fitness" as required by
SCR 22.36(6).           See In re Medical Incapacity Proceedings Against
Schlieve, 2010 WI 22, 323 Wis. 2d 654, 780 N.W.2d 516.




                                               2
                                                                             Nos.   1997AP3862-D
                                                                                    1996AP3390-D


        ¶5      Attorney      Schlieve         filed         a    second      petition      for
reinstatement on September 10, 2012.                         James G. Curtis, Jr. was
appointed as referee on December 18, 2012.                            A hearing was held
over     the     course      of     two     days,     with       testimony     completed     on
March 13, 2014.
        ¶6      One of the witnesses who testified at the hearing was
Linda        Albert,   who        manages     the     Wisconsin       Lawyers       Assistance
Program (WisLAP) which provides the systems and monitoring for
attorneys.         Ms.     Albert         testified    that       Attorney     Schlieve     had
contacted        WisLAP      in      the     spring     of        2013   inquiring       about
monitoring       since     she      was     applying     for       reinstatement       of   her
license to practice law.                  Ms. Albert explained:

        Nancy came into the program and, unlike the majority
        of monitoring participants, has exhibited behaviors
        that have required a lot of clarification of what is
        to be done within monitoring.

                . . . .

             So a difficult time following directions of the
        program, you know, having directions to make sure and
        report all prescription medication to us, and then
        discovering that she hasn't done that and having to
        ask for that. You know, she has wanted to dictate the
        terms of her testing, you know, when testing will be
        and how it will be done and why we would need to do
        hair testing.

                . . . .

             She had a positive screen for a mood-altering
        substance in her September of 2013 screen.      And I
        asked her about it, and her answer was very vague and
        something about, you know, having gotten medications
        from different countries when she was traveling and
        she didn't know if that could cause it.



                                                3
                                                              Nos.   1997AP3862-D
                                                                     1996AP3390-D

            And so we have to take a lot of time trying to
       verify very objective data. And so, for example, with
       the positive screen, we even went to her doctor and
       asked for a list of prescribed mediations.   And when
       that came back, it did not include any medication --
       any prescription for something with codeine in it for
       September of 2013; yet she had a positive screen for
       codeine. So it's been these types of things that have
       become particularly time-consuming and difficult with
       not following the directions and the questioning and
       not agreeing with.

            . . . .

            So, in essence, what I have said to Nancy is --
       you know, sent her a letter to state, you know, we can
       follow her through her hearing today, but that she's
       no longer appropriate to be in the monitoring program.

                                 * * * *

            It's been a case of difficulty of getting
       information, problems following directions, causing
       problems at the collection site, not giving access to
       medical providers when the contract requires it. So I
       don't anticipate that those things would change
       because we've tried hard to work with them and to
       redirect and to ask for what we need. . . . .

            We don't have the staff time. And I don't think
       that it's probably in the best interest to, you know,
       try to continue to work with that behavior versus just
       not have the relationship for either party. . . . .

                                 * * * *

       I would say that 99% of the people that have come into
       monitoring are able to follow the instructions and
       understand them and do things according to sequence
       and provide the information requested.

            And it's a pretty rare case when someone is not
       able to do that.
       ¶7   Testimony   was   also   received    at     the     hearing     from
persons in the Eau Claire city attorney's office.                    Eau Claire
City    Attorney   Stephen    Nick   testified   that     in     his    opinion

                                     4
                                                                 Nos.    1997AP3862-D
                                                                         1996AP3390-D


Attorney Schlieve had been dishonest, abused the legal system,
lacked the ability to navigate the city and court procedures,
and engaged in a pattern of intentional delay and avoidance with
respect to various city citations issued against her relating to
rental     property.         Assistant        City   Attorney    Stephen     Bohrer
testified about the numerous problems he had encountered with
Attorney    Schlieve    on    various     citation    matters.      He    said   she
would send undated faxes with no return fax or phone number.
Mr. Bohrer concluded that Attorney Schlieve was manipulating the
dates on the faxes for purposes of causing delay or causing
cases to become more complicated than they needed to be.                         Mr.
Bohrer said Attorney Schlieve's professionalism was very poor
and his inability to reach and communicate with her was very
frustrating.
     ¶8     The referee issued his report and recommendation on
May 5, 2014.     The referee said that in the 2010 decision denying
her previous reinstatement petition, this court noted that under
SCR 22.36(6), the petitioner has the burden of showing by clear,
satisfactory,     and        convincing        evidence   that     the      medical
incapacity has been removed and that the petitioner is fit to
resume the practice of law, with or without conditions.                          The
referee also noted that the term "fit," as used in SCR 22.36(6),
with the phrase "to practice law," encompasses more than removal
of a medical incapacity, and that the term "fit" is sufficiently
broad to imply a state of preparedness to render competent legal
services.


                                          5
                                                        Nos.    1997AP3862-D
                                                                1996AP3390-D


     ¶9    The   referee   noted   that   Attorney   Schlieve     has   not
practiced law since 1998, and during that time she has not been
employed outside the home.         She has primarily spent her time
caring for her son, who has medical issues.          The referee noted
that in addition to caring for her son, Attorney Schlieve has
been active in her church, in dog rescue efforts, and in other
community affairs.    In recent times, she has been working with a
friend to establish two startup businesses, one offering tea
party services and one offering wedding planning services.
     ¶10   The referee noted that Attorney Schlieve has earned a
significant number of continuing legal education (CLE) credits
and has attended a significant amount of coursework, all online.
The referee noted that Attorney Schlieve provided a printout
from the State Bar listing CLE attendance and dues payments from
the early 1990s through January 2014.        The referee said it was
impossible to determine precisely what courses Attorney Schlieve
had actually attended, since all were online courses.
     ¶11   The referee also said:

          Ms. Schlieve is to be commended for the efforts
     she has taken to update her education on various legal
     topics.   However attending courses on Whistleblowing
     cases involving the SEC or IRS, or Sarbanes-Oxley, or
     Mining Loss Symposiums, would seem to have little
     bearing on her preferred practice areas.           More
     importantly, the record reflects that Ms. Schlieve has
     not approached her re-education in an organized,
     consistent and deliberate fashion.        She has not
     planned and prepared for the day when her license to
     practice may be reinstated. She has taken courses for
     the sake of taking courses in order to show that she
     has gone beyond the minimum requirements of the rules.



                                    6
                                                                            Nos.    1997AP3862-D
                                                                                    1996AP3390-D


        ¶12    The    referee       said    that    Ms.     Albert's    testimony          about
Attorney Schlieve's participation in the WisLAP program raised a
number    of     serious         questions.         The    referee     said        that    after
Attorney Schlieve's second positive test for codeine, and after
Ms.   Albert        had    informed       Attorney    Schlieve       that     WisLAP       would
continue       with       monitoring       efforts        through    the      reinstatement
hearing       but    not    thereafter,       Attorney       Schlieve        contacted         her
doctor's office and withdrew the medical release in favor of
WisLAP.        Because of the positive drug screen in February of
2014,    WisLAP       again      requested      a    list    of     Attorney        Schlieve's
current medications and the dates they were first prescribed.
When the list was not forthcoming, WisLAP staff followed up with
the     doctor       and      was    informed       that     there     was         no    medical
authorization from the patient.
        ¶13    The referee noted that around March 7, 2014, Attorney
Schlieve       instructed           her    doctor's        office      to     release          the
information that she had a prescription for acetaminophen with
codeine, although the date when it was first prescribed was not
provided.        The referee queries, "Was Ms. Schlieve attempting to
fabricate an explanation for the positive drug screen showing
codeine in her system?                  At a minimum, it would seem that Ms.
Schlieve       was     less      than     forthcoming       in    WisLAP's         efforts      to
understand the reason for the positive drug screen."
        ¶14    While       the    referee    said     he    was     satisfied           that   the
medical incapacity of alcoholism has been removed, the referee
said that, based on her interactions with WisLAP, two positive


                                               7
                                                                              Nos.      1997AP3862-D
                                                                                        1996AP3390-D


drug screens showing codeine in her system, and her inability to
complete    sustained         monitoring         for       a    period      of    at        least    12
months, there was no objective verification from WisLAP that
Attorney    Schlieve          does     not       still         suffer       from        a    medical
incapacity.         Moreover,         the     referee          concluded         that        Attorney
Schlieve    failed       to    sustain        her      burden         to   prove        by       clear,
satisfactory, and convincing evidence that she is currently fit
to   resume      the     practice           of       law       within      the        meaning       of
SCR 22.36(6).
     ¶15    Attorney          Schlieve        argues           that     she      has        in     fact
presented clear, satisfactory, and convincing evidence both that
her medical incapacity has been removed and that she is fit to
practice law.          At oral argument, she stated that she would be
amenable    to   having       her     law    practice          monitored         by    a     licensed
attorney.        She    said    that     an      attorney        indicated         he       would    be
willing to monitor her.                Attorney Schlieve stated that if her
law license is reinstated, she would like to practice in the
areas of adoption and immigration.                         She said the attorney she
identified as a possible monitor has no experience in either of
those practice areas.
     ¶16    The Office of Lawyer Regulation (OLR) argues that the
referee's findings, conclusions, and recommendations should be
upheld.       The      OLR    notes    that          the   referee         had    an        extensive
opportunity to make personal observations of Attorney Schlieve
and the other witnesses, and that the referee set forth and
explained in detail the rationale and basis for his conclusion


                                                 8
                                                                       Nos.   1997AP3862-D
                                                                              1996AP3390-D


that    Attorney         Schlieve's         reinstatement        petition     should     be
denied.
       ¶17     When we review a referee's report and recommendation,
we will adopt the referee's findings of fact unless they are
clearly erroneous.              Conclusions of law are reviewed de novo.
See     In      re    Disciplinary            Proceedings        Against      Eisenberg,

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.
       ¶18     Following     a       suspension      for   medical     incapacity,       an
attorney       seeking    the    reinstatement        of   his    or   her    license    to
practice law must show both that the medical incapacity has been
removed and that the petitioner is fit to resume the practice of
law.      As    we   noted      in    our    order   denying     Attorney     Schlieve's
previous reinstatement petition:

            The term "fit," as used in 22.36(6) with the
       phrase "to practice law," encompasses more than the
       removal of a medical incapacity or being in a
       physically, mentally, or morally sound state.      The
       term "fit" is sufficiently broad to imply a state of
       preparedness to render competent legal services; that
       is, to be prepared to provide the measure of expertise
       to ensure the attorney may be safely recommended to
       the community as a person to be consulted by and to
       represent others in legal matters.
Schlieve, 323 Wis. 2d 654, ¶24.
       ¶19     Upon careful review of this matter, we agree with the
referee that Attorney Schlieve has failed to demonstrate that
she    is      currently        fit     to    resume       the    practice      of     law.
Accordingly, we deny her petition for reinstatement.
       ¶20     Attorney Schlieve has filed an objection to the OLR's
statement of costs.              Among other things, she argues that costs


                                               9
                                                                  Nos.    1997AP3862-D
                                                                          1996AP3390-D


should    not   include   the    fees    of     counsel   for    the     OLR.         This
court's general policy, as expressed in SCR 22.24(1m), is to
impose all costs, including the expenses of counsel for the OLR,
upon the respondent.            We find no reason to depart from that
general practice here.
     ¶21    IT IS ORDERED that the petition of Nancy A. Schlieve
seeking    reinstatement        of   her      license     to    practice        law    in
Wisconsin is denied.
     ¶22    IT IS FURTHER ORDERED that within 180 days of the date
of this order, Nancy A. Schlieve shall pay to the Office of
Lawyer     Regulation     the    costs     of     this    proceeding,       totaling
$20,367.49.     If the costs are not paid within the time specified
and absent a showing to this court of her inability to pay the
costs within that time, the license of Nancy A. Schlieve to
practice law in Wisconsin shall remain suspended until further
order of the court.




                                         10
                                                                    Nos.       1997AP3862-D.ssa
                                                                               1996AP3390-D.ssa


     ¶23     SHIRLEY S. ABRAHAMSON, J.                  (dissenting).              The court
is   today    reinstating       the   license          of     another          attorney     who
suffered     from   a   medical   incapacity.               See    In     Re    Disciplinary
Proceedings     Against       Linehan,   2015         WI     82,    ___    Wis.        2d   ___,
___ N.W.2d     ___.      In    that   case,       the       court       imposed        numerous
conditions     to   ensure     that   the       attorney       continues          to    receive
appropriate treatment and monitoring to prevent a relapse and to
protect his clients and the public.                   I would reinstate Attorney
Schlieve's     license    to    practice        law     in    Wisconsin          subject      to
strict conditions such as those imposed in Linehan.




                                            1
    Nos.   1997AP3862-D.ssa
           1996AP3390-D.ssa




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