Conditionally admitted attorney reinstated (UPDATE)

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A suspended attorney who was granted conditional admission to practice in Wisconsin under a 2011 state Supreme Court rule had his license reinstated Friday.

In their decision, the justices noted the case was a “novel” one, and explained that it was the first time they had to address a suspension stemming from the new rule.

The attorney, only identified as “B.R.C.” in the court’s per curiam decision, was conditionally admitted by the Board of Bar Examiners in January 2012. According to state Supreme Court rules, the names of those who are conditionally admitted to practice law – as well as the agreement to be admitted – are confidential, with few exceptions.

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B.R.C. was admitted on the condition that he abstain from using alcohol and be monitored by the Wisconsin Lawyers Assistance Program, which is run by the State Bar, for two years. This decision was based on B.R.C.’s application, which listed a 2009 drunken driving conviction, as well as other factors that “raised character and fitness concerns pertaining to his alcohol use.”

B.R.C. accepted the initial agreement, but balked when WisLAP got involved and imposed regulations that were more extensive than originally proposed. Eventually, he was suspended for failing to sign a contract, according to the opinion.

On Friday, six of the court’s justices – Chief Justice Shirley Abrahamson did not participate – reinstated B.R.C.’s license, though they ordered him to comply with WisLAP until July. They also ordered B.R.C. to pay $4,752.65 for the cost of the proceedings.

The opinion notes that, absent a signed contract, B.R.C. has voluntarily complied with WisLAP and has not tested positive for alcohol.

B.R.C. hired Werner Scherr of Scherr & Scherr LLP to represent him in the case. Scherr did not immediately return a phone call placed Friday.

BBE Director Jacquelynn Rothstein said Friday that she didn’t have a comment about the court’s decision.

Disagreement over agreements

According to the opinion, a dispute between B.R.C. and the BBE started fairly soon after his conditional admission.

His conditions included submitting to random urinalysis tests. B.R.C. accepted the BBE’s conditions and signed an agreement in December 2011. In March 2012, he met with an employee of WisLAP, who told him he also would need to sign an agreement that stated he also would need to submit to “hair follicle testing, fingernail testing, and blood testing, which are more expensive than the urine testing he had known would be required,” according to the court’s opinion.

He initially refused to sign the agreement, but relented in July 2012, after the BBE threatened to rescind his conditional admission and the court said his license would be suspended.

On the day he signed it, though, B.R.C. received an email from WisLAP that said they hired a new third-party administrator and that he would need to sign a new contract. The new contract stated he would have to be monitored until July 2014, six months longer than his original contract stated.

Throughout the back and forth with WisLAP, though, B.R.C. never addressed “the fact that he had been practicing law for nearly six months without submitting to the WisLAP monitoring expressly required by his conditional admission,” according to the opinion.

Still, B.R.C. refused to sign it, challenging the extra six months. The court subsequently suspended his law license in August 2012.

He filed a petition for reinstatement in October 2012, and the BBC recommended a psychological evaluation and to monitor him for an additional two years. B.R.C. opposed this, and the case ended up in front of a referee in 2013.

The referee recommended reinstating B.R.C. and that he continue WisLAP monitoring until July 2014. The referee declined to require B.R.C. to undergo a psychological evaluation or extend the monitoring.

The justices, while largely ruling in favor of B.R.C., did note “it begs credulity to think the court would simply excuse six months of noncompliance with oversight the BBE had deemed necessary to ensure he could be safely recommended to the public,” according to the opinion.

According to the opinion, B.R.C.’s case led the BBE to revise its protocol so that it now presents the WisLAP agreement, when required, to the conditionally admitted at the same time as other agreements that are part of the process. Rothstein said the BBE’s agreements now “are broad enough to capture a wide variety of testing methodologies,” but said she couldn’t get into whether it was in this case because of confidentiality issues.

The justices adopted conditional admission as a rule in June 2011, following a request from the BBE. Prior to then, the BBE could only approve or deny admission to practice.

According to the BBE’s 2013 annual report, nine people were conditionally admitted last year, with a total of 17 since the rule was adopted. This is compared to the 417 people who were admitted by the state Supreme Court in 2013, and the 1,348 admitted between 2011 and 2013.

Of those that were conditionally admitted, at least 10 had alcohol or drug issues, according to the annual report. Follow @eheisigWLJ