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Under “unique facts of this case,” failure to report felony conviction to OLR in writing “too technical to justify imposition of legal consequences”

Office of Lawyer Regulation v. Daniel W. Johns, Jr., 2014 WI 32; case activity

Because OLR was actually informed of an attorney’s felony conviction, the attorney’s failure to notify OLR of the conviction in writing under SCR 21.15(5) is “too technical” a violation to justify discipline. In addition, the nature of the conviction didn’t adversely reflect on the attorney’s honesty, trustworthiness, or fitness as a lawyer, so discipline was not merited under SCR 20:8.4(b).

Johns was the driver of a vehicle that crashed, killing the passenger, who was Johns’s brother. He was charged with and pled guilty to homicide by use of a vehicle with a prohibited alcohol concentration. At the plea hearing the question arose whether Johns would automatically lose his law license because of the conviction. During a recess Johns, his attorney, and the prosecutor conferred by telephone with the deputy director of OLR, who confirmed Johns would not automatically lose his license, but that OLR would apply the fitness standards under SCR 20:8.4(b). (¶¶7-13).

Johns was placed on probation with conditional jail time and, in 2007, was discharged from probation early because of his progress and behavior. (¶15). In 2010 a newspaper contacted OLR about Johns’s conviction, prompting OLR to file a complaint alleging Johns failed to report his conviction under SCR 21:15(5) and that his conviction reflected adversely on his fitness as a lawyer under SCR 20:8.4(b). (¶¶17-18).

The supreme court rejects both charges. As to the failure to report:

31  This was a violation of the most technical variety. It is undisputed that, due to the telephone conversation between Attorney Johns’ lawyer and the OLR’s deputy director on the day of Attorney Johns’ plea hearing, the OLR had actual knowledge of the conviction from the day it was entered. Under the unique facts of this case, a completely literal enforcement of SCR 21.15(5) benefits no one and settles nothing. …

As to Johns’s fitness as a lawyer, the court concludes that Johns’s “isolated criminal act, even with its tragic consequences, [does not] denote[] a deficiency in honesty, trustworthiness, or other character traits that are essential to the practice of law.” (¶40).

This decision is noted less for its substance than for Chief Justice Abrahamson’s dissent and its references to three other disciplinary decisions released on the same day. In addition to arguing Johns’s violated both rules but that discipline is not warranted, she writes of the need to conduct a thorough, objective review of OLR in light of various issues arising with its disciplinary proceedings—e.g., the long delay in prosecuting this complaint and the “wisdom” of OLR’s appeal; the role partisan politics and media publicity appears to be playing in OLR cases, as apparently occurred in OLR v. Kenneth R. Kratz, 2014 WI 31; and OLR’s filing of multiple complaints that could be handled in a single prosecution, as pointed out in OLR v. Tim Osicka, 2014 WI 33, and OLR v. Tim Osicka, 2014 WI 34. Justice Prosser also dissented in those three cases, and joined in the call for a review of OLR.

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