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Attorneys seek tangible targets for reinstatement

By: Caley Clinton, [email protected]//February 18, 2013//

Attorneys seek tangible targets for reinstatement

By: Caley Clinton, [email protected]//February 18, 2013//

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Vague objectives leave some struggling to return to practice

Walking into her reinstatement hearing May 23, 2011, attorney Jane Edgar felt fairly confident.

The case was, she believed, straightforward and she did not anticipate any problems proving her worthiness to practice law after 12 years away from the courtroom.

Edgar was suspended in 1999 from practicing law for two years as a result of stealing money from a client, which she promptly repaid when caught, in a divorce proceeding. In the years since, she received treatment for mental health problems — she was diagnosed as bipolar in 2006 — that contributed to the theft.

She devoted much of her time to caring for her epileptic son, in addition to serving on the West Allis-West Milwaukee School Board, the West Milwaukee Plan Commission, PTA president at West Allis Central High School and working with other nonprofit organizations.

“I was suspended so long ago,” she said, “and have kept my nose clean.”

Edgar opted to represent herself in the reinstatement proceeding. Although she could have called in character witnesses, such as her husband of almost 20 years, she opted not to, instead testifying on her own behalf during the morning hearing.

During her hour-long-plus testimony, Edgar said, she expressed remorse for her misdoings “a number of times,” in addition to noting the positive changes she had made since the 1999 suspension.

To Edgar’s surprise and horror, the referee appointed to oversee the case, Hannah Dugan, who declined to comment specifically on this case, was not convinced.

Attorney Hannah Dugan stands outside of her Milwaukee office Feb. 9, 2012. (File photo by Kevin Harnack)

In Dugan’s report following the hearing, she stated that Edgar “did not present an appropriate attitude regarding the reinstatement process that would be considered in conformity with the standards of the practicing bar.”

The state Supreme Court concurred, and on March 1, 2012, Edgar’s petition for reinstatement was denied.

“It’s extremely embarrassing to be in the position that I’m in,” Edgar said. “When I look at all the cases of clients that were denied, it’s night and day from where I am. I look at ones that have been reinstated, in very serious cases. It’s just mortifying to be in my position.”

An unclear target

The standard for reinstatement, as set forth in SCR 22.31, dictates that “the petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law in Wisconsin.”

The language might be vague, said former state Supreme Court Justice Janine Geske, but it is important.

“We’re held to this higher moral standard as lawyers,” she said. “The court has to look at whether it’s appropriate to return that privilege. [The moral character question] encompasses a lot. You can’t say it’s not important.”

But it’s a standard that’s admittedly “difficult to get your arms around,” said longtime attorney referee John Decker.

“Depending on the circumstances,” he said, determining a lawyer’s moral character “can be one of the biggest challenges.

“It’s incumbent on the lawyer to show he or she has learned from the previous experience and is not likely to repeat,” Decker added. “It helps to bring in witnesses.”

Character witnesses who testify in person provide some of the strongest evidence of a petitioner’s moral standing, he said. Cursory reference letters aren’t as helpful, Decker said. With both letters and in-person testimony, he added, important factors include the witness’ reputation and how well they know the petitioner.

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Edgar said she was naïve in her assessment of how important those character witnesses were. She submitted reference letters in her first attempt at reinstatement, but her lack of witnesses was cited in referee Dugan’s report as a cause for concern.

In her next attempt at reinstatement, Edgar said, she is “going to expect a two- to three-day trial and just parade people in” to testify, including her husband.

Focusing on character

Presenting appropriate witnesses to attest to his moral character was a recipe for success in attorney David Jennings III’s 2011 reinstatement proceedings.

Jennings in 1992 petitioned for the voluntary revocation of his law license after acknowledging that, according to court records, he could not successfully defend against allegations he had stolen $550,000 from clients. He also admitted to embezzling as much as $100,000 from his mother’s living trust, of which he was the trustee.

In his 2011 bid for reinstatement, Jennings, who served 27 months in prison for his crimes, presented three witnesses to support his case: two fellow attorneys and the president and CEO of a firm who was a victim of Jennings’ theft. He also submitted letters from four other attorneys who attested to his moral character and four other people who knew him well.

Still, the referee in Jennings’ case recommended denying reinstatement and stated she questioned his “moral character, his attitude and understanding of the standards imposed on members of the bar and whether he proved he would act in conformity with those standards.”

“How do you show moral character and ability to practice law again when you can’t practice law?” Jennings said. “It’s a little tough.”

State justices were satisfied with the case Jennings presented, however, and ultimately concluded that he satisfied all of the requisites for reinstatement of his license to practice law in Wisconsin.

“The question of moral character, it’s always vague,” said Geske, who retired from the state Supreme Court in 1998. “Anytime you hire someone based on their character, what does that mean? It really is the trustworthiness and professionalism of the lawyer in line with all the other factors. I don’t know how you make that more specific. … Truthfulness, trustworthiness; ultimately that’s what were talked about [in deciding moral character].”

Where to aim

Although she declined to comment on Edgar’s case specifically, Dugan, who has served as a referee since 2010, noted the importance of the legal standards for reinstatement.

“Every profession has their code and it’s a pretty clear code,” she said. “There’s no secret here. You’re taught this in school. It’s up on the website. It’s part of the law. We’re being held to the standards of our profession.”

The question of moral character is one that comes up early in the process of becoming a lawyer and gaining admittance to the bar, said Peter Rofes, a professor of law at Marquette University Law School.

“So much of what we do in law school, or try to do, is try to be sure to know what gets lawyers in trouble and develop a professional skill set — a disposition, a character that keeps them on the safe and correct side of that,” Rofes said. “A lot of what we talk about early on is the character fitness aspect of admission to the bar.”

To prove their character is high and that they are worthy of admission, Rofes said he advises his students to own up to mistakes early on in the process.

“The single biggest mistake [for a bar applicant] is to misrepresent or to conceal certain actions from your past,” he said. “Misrepresenting you and your past invariably brings more problems than being candid and providing justifications.”

In Edgar’s case, Dugan in her report stated, “expressed concern about a pattern of incomplete disclosure.” For example, Dugan stated she was troubled by Edgar’s statement that she was not party to any civil action when, in fact, she had civil judgments against her related to failure to pay office rent and failure to pay OLR costs. Such discrepancies, paired with the fact that Edgar “did not present witnesses or exhibits … to support her petition” led Dugan to assert that Edgar was not ready for reinstatement.

“One of the goals of the disciplinary process is to protect the public from attorneys who can’t perform within the expectations of the bar,” Dugan said in talking about her role as referee. “The reinstatement process is all geared toward determining if someone is fit.”

Edgar, who spent the summer of 2010 taking continuing legal education classes to get back into the practice of law, said she now can see several missteps she made during her reinstatement attempt.

She continues to freely acknowledge her previous wrongdoings.

“I brought this all down on myself,” she said. “I take full responsibility for what I did.”

But she also insists she is a good attorney, and could provide a needed service to the legal community if allowed to re-enter practice and work, as she desires, as a guardian ad litem in children’s court.

Armed with a greater understanding of what it might take to prove her moral character, Edgar said she is “just revving up” for a second attempt at reinstatement. She said the process is fair but she underestimated the burden of proof aspect of the proceedings.

“I feel like I’m an honorable person and I have a great deal of integrity,” she said. “It was absolutely appropriate that I was suspended for two years, but in this country redemption is available and you move on. That’s what I’m interested in doing.”

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