Tuesday, March 30, 2010

Not Fit For Reinstatement

The Wisconsin Supreme Court denied the reinstatement petition of an attorney who had been suspended due to an alcohol-related medical incapacity in 1998. The petitioner had suffered a relapse into drinking in October 2005 and claimed that she had been sober since that  time. She petitioned for reinstatement in April 2006.

The referee had recommended reinstatement with conditions that included passing the bar exam in light of the suspension length. The Office of Lawyer Regulation objected to the recommendation and the court agreed that the evidence did not warrant reinstatement:

Supreme court rule 22.36(6) governs reinstatement following suspension due to medical incapacity.  It provides that the petitioner has the burden of showing by clear, satisfactory, and convincing evidence that (1) the medical incapacity has been removed and (2) the petitioner is fit to resume the practice of law, with or without conditions.  Id.  Both requirements are necessary for reinstatement following a suspension for medical incapacity.  

 We conclude the referee's findings do not support a determination that Attorney Schlieve has met her burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence she is fit to resume the practice of law.  Whether the petitioner has demonstrated fitness to resume the practice of law presents a legal question we review de novo.  See Nottelson v. Wis. Dep't of Indus., Labor, and Human Relations, 94 Wis. 2d 106, 116, 287 N.W.2d 763 (1980) (The question whether the facts, as found, fulfill a legal standard presents a question of law.).  We conclude the failure to establish the fitness component of SCR 22.36(6) is dispositive here; therefore, it is unnecessary to resolve the parties' arguments with respect to the referee's remaining findings and conclusions.

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.

Referee Hanson expressed his concern that Attorney...has been away from the practice of law for over nine years and needs "extensive retraining and legal education."  He stated that testing is needed to determine the level of Attorney...'s legal expertise; he recommended she be required to pass the state bar examination and that she be mentored.  We conclude the referee's findings fail to identify clear, satisfactory, and convincing evidence that Attorney...is sufficiently prepared to resume a law practice and be safely recommended to be consulted by and to represent individuals in legal matters.  Notwithstanding the updated continuing legal education information recently submitted, we are unpersuaded that Attorney...has met her burden under SCR 22.36(6) to establish she is currently fit to resume the practice of law.  Consequently, we deny Attorney...'s petition for reinstatement

The court also ordered the petitioner to pay the costs of the proceeding. (Mike Frisch)


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