Thursday, June 4, 2020

In Wisconsin

The Wisconsin Supreme Court has reinstated with conditions an attorney whose license was revoked in 2003

On September 6, 2019, the referee filed a report recommending that this court conditionally grant Attorney Banks' reinstatement petition. Among other things, the referee found that, since his revocation, Attorney Banks has "applied himself diligently to getting his life back on track"——efforts that are "impressive" and "give insight into the strength of [his] character." The referee found that Attorney Banks currently works as a school teacher and a security guard. The referee found that Attorney Banks has remained current with his continuing legal education requirements.  The referee found that, if reinstated, Attorney Banks does not intend to practice law in Wisconsin, but rather plans to use his Wisconsin law license to help him become licensed to practice law in Tennessee or Mississippi. The referee found that Attorney Banks has committed to pay the OLR $300 per month toward his outstanding costs obligations. Ultimately, the referee wrote that he "concur[red] with the OLR recommendation that [Attorney] Banks' license to practice law in Wisconsin should be reinstated." The referee proposed that the court impose the following two conditions on Attorney Banks' reinstatement: (1) that he fully comply with his costs payment agreement with the OLR; and (2) that he annually provide the OLR with a summary of his finances.

No exceptions were filed but the court expressed concern about the lack of specific findings on the reinstatement criteria

Although the referee's report is lacking in this respect, we opt not to remand this matter to the referee for additional findings and conclusions, for two reasons. First, further proceedings before the referee would generate additional costs for Attorney Banks——who, the record shows, already has considerable financial obligations——and would serve to delay the disposition of this matter further. Second, in its post-hearing memorandum filed with the referee, the OLR agreed that Attorney Banks has satisfied all requirements for reinstatement, and the referee endorsed this agreement between the parties.

Justice Kelly "reluctantly" dissented

I am in this uncomfortable place primarily because of the deficiencies of the referee's report. The referee's role in the reinstatement process is crucial. His responsibility is not just to resolve disputed facts; he actually creates the factual record we use in determining whether the petitioner has satisfied the prerequisites for reinstatement.

...I do not doubt the OLR genuinely believes that Mr. Banks has satisfied the prerequisites to reinstatement of his law license. Nor do I have information affirmatively suggesting Mr. Banks should not be reinstated. But we don't reinstate attorneys based on the OLR's beliefs or the absence of negative information in the record. We require proof——by clear, satisfactory, and convincing evidence——that the petitioner has affirmatively met the conditions for reinstatement. Instead of proof, however, we have a referee's report that does not address the criteria discussed above, a lack of testimony or other evidence from Mr. Banks to prove their satisfaction, and the OLR's failure to explain why it believes we need not inquire any further into the rationale for his reinstatement. And that means, with respect to the criteria I identified above, we have no facts at all with which to inform our judgment. So although we have the authority to act as the fact finder in reinstatement petitions, I haven't found facts in this record to support the reinstatement criteria I discussed. For these reasons, I would remand the petition to the referee for further fact-finding. Therefore, I respectfully (and reluctantly) dissent.

I am authorized to state that Justice REBECCA GRASSL BRADLEY joins this dissent.

His 2009 reinstatement petition was denied. (Mike Frisch)

Bar Discipline & Process | Permalink


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