2008 WI 66
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2006AP578-D |
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In the Matter of Disciplinary Proceedings Against Hazel J. Washington, Attorney at Law. Office of Lawyer Regulation, Complainant, v. Hazel J. Washington, Respondent. |
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DISCIPLINARY
PROCEEDINGS AGAINST |
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Opinion Filed: |
June 20, 2008 |
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Dissented: |
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2008
WI 66
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
ATTORNEY reinstatement proceeding. Reinstatement granted upon conditions.
¶1 PER CURIAM. We review a referee's report
recommending that Hazel J. Washington's license to practice law in
¶2 The standards that apply to all petitions seeking reinstatement after a disciplinary suspension/revocation are set forth in SCR 22.31(1).[2] In particular, the petitioning attorney must demonstrate by clear, satisfactory and convincing evidence that he or she has the moral character necessary to practice law in this state, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the attorney has complied fully with the terms of the suspension order and SCR 22.26. In addition, SCR 22.31(1)(c) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4)(a)-(4m).[3] Thus, the petitioning attorney must demonstrate that the required representations in the reinstatement petition are substantiated.
¶3 Although the referee's report discussed a number of concerns raised by the Office of Lawyer Regulation, the referee found that Attorney Washington had satisfied the requirements for the reinstatement of her license to practice law in Wisconsin. The referee found generally that Attorney Washington had proven that she has the moral character necessary to practice law in this state, that her resumption of the practice of law would not be detrimental to the administration of justice, and that she had complied with the terms of her suspension and the requirements that accompany a suspension.
¶4 Although we share some of the concerns raised by the referee,
there is no basis on which to find that the referee's factual findings were
clearly erroneous. See In re
Disciplinary Proceedings Against Carroll, 2004 WI 19, ¶9, 269
¶5 Attorney
¶6 This reinstatement proceeding stems from Attorney Washington's
18-month suspension arising out of her conviction in federal court for
attempting to evade the payment of a large portion of her federal income tax
due for 1998. The Internal Revenue
Service (IRS) initiated an audit of Attorney
¶7 The federal authorities chose to charge Attorney
¶8 After the entry of Attorney
¶9 The OLR filed a complaint that alleged in a single count that
Attorney Washington had violated SCR 20:8.4(b).[4] The OLR and Attorney Washington then entered
into a stipulation, in which Attorney Washington admitted her professional
misconduct. The stipulation further
stated that the OLR recommended, and Attorney
¶10 After issuing an order to show cause why the suspension should not
be for a period of 18 months and after considering the responses of the
parties, we determined that Attorney Washington's professional misconduct
required an 18-month suspension of her license to practice law in Wisconsin,
retroactive to February 3, 2006, the date of the summary suspension. In re Disciplinary Proceedings Against
Washington, 2007 WI 65, 301
¶11 On June 12, 2007, Attorney
¶12 The Board of Bar Examiners filed a memorandum stating that on the
basis of the materials Attorney
¶13 The referee held a hearing on Attorney
¶14 The referee issued a report and recommendation on December 21,
2007. The referee's report summarized
the testimony given at the hearing and discussed a number of issues raised by
the OLR's investigation, which were addressed in exhibits filed by the OLR and
in Attorney
¶15 First, the referee noted that Attorney Washington had previously been
convicted of two felonies in 1979. Prior
to becoming an attorney, Attorney
¶16 The referee also discussed some concerns with the winding up of two
cases at the time of Attorney
¶17 Attorney
¶18 Ultimately, both motions were denied. After the summary suspension had been
imposed, the circuit court denied the motion that Attorney Washington had filed
on behalf of T.S. as untimely under the statutory provisions cited in the
motion. T.S. received a copy of that
decision from a source other than Attorney
¶19 As was the case with T.S., the postconviction motion that Attorney
Washington had filed on behalf of A.A. was also denied as time-barred and as
improperly brought under Wis. Stat. § 974.06. After
receiving a copy of the circuit court's decision, A.A. filed a request for
reimbursement from the Wisconsin Fund for Client Protection (the Fund). Attorney
¶20 The referee also discussed the OLR's contention that Attorney
Washington had misrepresented a number of items in her responses to the OLR's
reinstatement questionnaire. For
example, the OLR claimed that Attorney Washington had failed to report income
from the sale of a piece of real estate in October 2006, although she had shown
a gain from a similar real estate transaction that had occurred in April 2006. At
the reinstatement hearing, Attorney
¶21 Another alleged misstatement in her reinstatement questionnaire
responses involved a list of every civil action in which Attorney Washington
was a party. Attorney
¶22 Although the items discussed above clearly worked against Attorney
¶23 When asked to explain why she had failed to report substantial
amounts of income on her 1998-2000 tax returns, Attorney
You know, as I go back and think, there's no reason why I did what I did, I mean, no reason that is good enough. It was wrong what I did, and I can't sit here and justify what I did.
. . .
And it was wrong to——for example, in '99 when I took the personal injury check that should have been deposited into the business account and paid expenses, personal expenses. I didn't have to do that. At that time I just wanted a new truck. I paid $3,000 on a new lease, paid out the old lease, gave my children some money. It's all outlined in exhibits what I did with the money.
I mean, I paid $30,000 on old taxes, but it wasn't
supposed to go that way. And just to
have those few little trinkets, God knows it hasn't been worth it. What I did was wrong, was so wrong, and I
would never do nothing like that again.
¶24 In addition to discussing Attorney
¶25 In the end, the referee concluded that Attorney Washington had
demonstrated the necessary moral character to practice law in this state and
had shown that her resumption of the practice of law would not be detrimental
to the administration of justice or subversive of the public interest.
¶26 The referee acknowledged that there were some issues, described
above, that militate against her reinstatement.
He concluded, however, that these problems were explainable and
technical. For example, Attorney
¶27 The referee was somewhat troubled by Attorney
¶28 Similarly, the referee also expressed concern about the two
postconviction motions for T.S. and A.A.
The referee acknowledged Attorney
¶29 Although he acknowledged these various problems, the referee did
not believe that these issues were serious enough to prevent Attorney
¶30 We note at the outset of our analysis that the primary focus of the
court's regulation of the practice of law in this state is to ensure the proper
functioning of the state's judicial system and to protect the public from
misconduct by attorneys. See SCR
ch. 21 Preamble.[6] In the context of reinstatement proceedings,
this occurs by analyzing whether the attorney seeking reinstatement has
demonstrated that he/she has the necessary good moral character to practice law
in this state and that his/her resumption of the practice of law will not be
detrimental to the administration of justice or subversive of the public
interest. SCR 22.31(1). Admittedly, these are not quantifiable
calculations. Thus, although this court
makes the ultimate decision on whether to reinstate the license of any
attorney, the referee's findings are important to the process because the
referee is able to view the petitioning attorney and other witnesses in person
and to assess the petitioner's remorse for past misconduct and commitment to
avoiding further misconduct. In the present
case the referee was clearly convinced that Attorney Washington is genuinely
remorseful for her past misconduct and will be loathe to commit future
misconduct. This assessment, based upon the referee's
firsthand view of Attorney
¶31 There are, however, some troubling issues connected with Attorney
¶32 In a similar vein, it is worthwhile to note that the criminal
activity that led to this suspension of her license to practice law in
¶33 Attorney Washington's failure to list the October 2006 real estate proceeds as income and to identify certain collection actions as pending litigation on her reinstatement questionnaire, while undeniably somewhat careless, do not appear to warrant keeping Attorney Washington from resuming the practice of law. As to the real estate proceeds, the referee notes that the OLR appeared satisfied with Attorney Washington's explanation that the funds were never truly in her possession. The OLR has not appealed from the referee's report to dispute this statement.
¶34 Similarly, while Attorney
¶35 As to the A.A. and T.S. representations, we agree with the referee
that while Attorney
¶36 Against these two relatively minor matters occurring during a
period of personal stress when facing criminal penalties and a pending
suspension of her license, we weigh a career spanning more than 17 years prior
to her summary suspension with no previous discipline. In that balance, the 17 years of practice
without incident provide a greater indication of Attorney
¶37 We turn to the issue of Attorney
¶38 While Attorney
¶39 Finally, we conclude that Attorney Washington should be required to
pay the full costs of this reinstatement proceeding. After the OLR filed its statement of costs,
Attorney
¶40 IT IS ORDERED that Hazel J. Washington's license to practice law in
Wisconsin is reinstated, effective immediately, upon the specific condition
that she provide to the Office of Lawyer Regulation on a quarterly basis for
the two years following her reinstatement complete and accurate client trust
records in compliance with SCR 20:1.15.
If Attorney Hazel J. Washington fails to provide such records as
required above, the Office of Lawyer Regulation is directed immediately to
inform this court of that fact and to request further appropriate action from
this court.
¶41 IT IS FURTHER ORDERED that within 60 days of the date of this order
Hazel J. Washington shall pay to the Office of Lawyer Regulation the costs of
this proceeding. 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 Hazel J. Washington
to practice law in
¶42 LOUIS B. BUTLER, JR., J., did not participate.
[1] SCR 22.33(3) provides that "[i]f no appeal is timely filed, the supreme court shall review the referee's report, order reinstatement, with or without conditions, deny reinstatement, or order the parties to file briefs in the matter."
[2] SCR 22.31(1) states:
The petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:
(a) That he or she has
the moral character to practice law in
(b) That his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest.
(c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to [(4m)] and 22.29(5), are substantiated.
(d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.
[3] SCR 22.29(4)(a) through (4m) provides that a petition for reinstatement shall show all of the following:
(a) The petitioner desires to have the petitioner's license reinstated.
(b) The petitioner has not practiced law during the period of suspension or revocation.
(c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.
(d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
(e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
(g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
(h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license if reinstated.
(k) A full description of all of the petitioner's business activities during the period of suspension or revocation.
(4m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin lawyers' fund for client protection for all payments made from that fund, or, if not, the petitioner's explanation of the failure or inability to do so.
[4] SCR 20:8.4(b) states that it is professional misconduct for a lawyer to "commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects."
[5] Attorney
[6] The Preamble to SCR ch.
21 states: "The lawyer regulation
system is established to carry out the supreme court's constitutional
responsibility to supervise the practice of law and protect the public from
misconduct by persons practicing law in
[7] SCR 22.24(1m) provides, in pertinent part, "The court's general policy is that upon a finding of misconduct it is appropriate to impose all costs, including the expenses of counsel for the office of lawyer regulation, upon the respondent."