Suspended Lawyer May Resume Practice Despite Fighting Conditional Admission Terms

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By Joan C. Rogers  

May 16 --The Wisconsin Supreme Court May 9 reinstated a lawyer who had been suspended from conditional admission to the bar after he disputed the terms of his monitoring contract on testing for alcohol use.

Although the board of bar examiners expressed concern about the lawyer's combative attitude toward aspects of the monitoring contract, the court accepted a referee's finding that the lawyer did not need to undergo a comprehensive psychological evaluation and that his monitoring contract did not need further extension.

This may be the first reported decision on a reinstatement petition filed by a lawyer who was suspended for not abiding by the terms of his conditional admission.


Nearly Half the States Provide for Conditional Admission, but It's Not Always a Sure Thing

The ABA adopted the Model Rule on Conditional Admission to Practice Law in 2008 and amended the rule in 2009. See 24 Law. Man. Prof. Conduct 92; 25 Law. Man. Prof. Conduct 418.

Conditional admission allows applicants who previously would have been excluded from admission due to past mental, emotional or substance abuse problems to join the bar on a temporarily conditional basis, with the promise of unconditional admission if the lawyer passes through the trial period with no recurrence of problems.

The concept has proved somewhat controversial. See “Confidentiality Is Still Sticking Point in Discussion of Conditional Admission,” 24 Law. Man. Prof. Conduct 297.

Wisconsin and 22 other states currently have rules that provide for conditional admission other than by waiver, according to a chart in the Comprehensive Guide to Bar Admission Requirements 2014 maintained by the National Conference of Bar Examiners and the ABA Section of Legal Education and Admissions to the Bar.

Conditional admission was denied or revoked in these cases:

Fla. Bd. of Bar Exam'rs re B.U.U., 2013 BL 280569, 124 So. 3d 172, 29 Law. Man. Prof. Conduct 673 (Fla. 2013) (with three justices dissenting, court denied conditional admission in light of applicant's serious financial problems and mental health issues).

In re Hinson-Lyles, 864 So. 2d 108, 19 Law. Man. Prof. Conduct 702 (La. 2003) (with two justices dissenting, court denied even conditional admission of former teacher who was convicted, before attending law school, of having sexual relationship with 14-year-old student).

Character & Fitness Comm. Office of Bar Admissions v. Jones, 62 S.W.3d 28, 18 Law. Man. Prof. Conduct 36 (Ky. 2001) (court revoked newly admitted lawyer's conditional right to practice after finding that lawyer deceitfully flouted his agreement with court's character and fitness committee to make payments on his student debt).

But see Florida Bd. of Bar Exam'rs re Barnett, 959 So. 2d 234, 23 Law. Man. Prof. Conduct 361 (Fla. 2007) (allowing conditional readmission, with three-year probationary period, of lawyer who had resigned from bar 10 years earlier following series of transgressions that lawyer attributed to his drug addiction).


Admitted With Conditions

In a per curiam opinion, the court noted that the lawyer, “B.R.C.,” received his law license in January 2012. He was an early beneficiary of the conditional admission rule that Wisconsin adopted in 2011. See Wis. Sup. Ct. R. 40.075.

“This rule affords certain bar applicants who might otherwise have been denied admission to the bar because of character and fitness concerns the opportunity to practice law subject to various oversight mechanisms designed to protect the public,” the court said.

Although B.R.C.'s two-year conditional admission required him to go along with monitoring by the Wisconsin Lawyers Assistance Program, he initially balked at signing a WisLAP monitoring contract that he said contained terms more onerous than those specified in his consent agreement for conditional admission.

B.R.C. eventually signed the monitoring contract but then disputed its end date, arguing that it should terminate in January 2014, two years from his conditional admission, rather than in July 2014, two years from his execution of the monitoring contract.

In August 2012 the court suspended B.R.C. from practice, citing his continued refusal to abide by the terms of his conditional admission.

Extra Conditions Not Necessary

Two months later B.R.C. sought reinstatement without any conditions. The board of bar examiners asked the court to require two years of monitoring from the date of B.R.C.'s reinstatement along with a “comprehensive psychological evaluation”--including personality testing--to see whether additional conditions should be imposed beyond monitoring for alcohol use.

The court accepted the referee's findings that B.R.C. had demonstrated character and fitness sufficient to warrant his readmission to the bar without psychological testing, subject to continued WisLAP monitoring until July 2014.

In reaching this conclusion, the court refused to revisit the original decision to grant conditional admission to B.R.C.; instead, it focused on the events following his entry to practice.

The court pointed out that B.R.C. had been monitored in the WisLAP program since July 2012, first under a monitoring contract and then by voluntarily participating during his suspension. The lawyer passed 26 tests for alcohol in his system during that time, and by all indications he had not used alcohol since he entered into the monitoring contract, the court said.

In addition, the court noted that, according to the referee, there was “an element of principle” in B.R.C.'s objections to the monitoring contract, and his objections resulted in changes to certain aspects of the bar examiners' conditional admission procedures.

Thus, the court agreed with the referee that there was insufficient cause for extending the conditions imposed on B.R.C. beyond July 2014 or for requiring psychological testing. But the lawyer must complete a full two years of monitoring as his conditional admission originally required, the court made clear.

To contact the reporter on this story: Joan C. Rogers in Washington at jrogers@bna.com

To contact the editor responsible for this story: Kirk Swanson at kswanson@bna.com


Full text at http://www.bloomberglaw.com/public/document/Bd_of_Bar_Examrs_v_BRC_2014_WI_23_Court_Opinion.

The Comprehensive Guide to Bar Admission Requirements 2014 is available at http://www.americanbar.org/content/dam/aba/publications/misc/legal_education/2014_comprehensive_guide_to_bar_admission_requirements.pdf.

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

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