In The Matter Of Disciplinary Proceedings Against Barry Lesieur v. Lesieur, 2007AP2763-D.

PER CURIAM.

ATTORNEY disciplinary proceeding. Attorney publicly reprimanded.

¶ 1 We review the report and recommendation of the referee, Attorney Gary L. Olstad. The referee recommended that Attorney Barry LeSieur be privately reprimanded for his professional misconduct subject to the possibility of a later “conversion” to a public reprimand, that certain conditions be placed upon Attorney LeSieur's continued practice of law in Wisconsin, and that Attorney LeSieur be required to pay the costs of this proceeding. After fully reviewing the matter, we conclude that a public reprimand and the assessment of full costs are appropriate. We also conclude that the imposition of conditions on Attorney LeSieur's license is appropriate, but we modify the conditions recommended by the referee.

¶ 2 Attorney LeSieur was admitted to the practice of law in Wisconsin in 1996. He maintains a private law practice in Lac du Flambeau.

¶ 3 Attorney LeSieur has been the subject of professional discipline on one prior occasion. On October 20, 2006, Attorney LeSieur agreed to the imposition

of a consensual private reprimand due to his criminal conviction for operating a motor

vehicle while intoxicated (OWI). The incident underlying this private reprimand occurred in May 2004. The consensual private reprimand was subsequently approved by a referee and was formally issued in February 2007. The consensual private reprimand identified the May 2004 incident as Attorney LeSieur's third OWI offense. In reality, the subject of the private reprimand was Attorney LeSieur's second OWI conviction.

¶ 4 The conduct underlying the present disciplinary proceeding stems from another OWI incident. On October 28, 2006, eight days after he agreed to the consensual private reprimand for his second OWI conviction, Attorney LeSieur once again operated a motor vehicle while intoxicated and was arrested. He subsequently pled no contest to a charge of OWI (third offense). He was sentenced to 90 days in jail and had his operator's license revoked for a period of 29 months. Attorney LeSieur timely self-reported his OWI conviction to the Office of Lawyer Regulation (OLR). See SCR 21.15(5).

¶ 5 Based on this conduct, the OLR filed a complaint alleging that Attorney LeSieur had committed a criminal act that reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects, in violation of SCR 20:8.4(b). ¹ Attorney LeSieur's answer generally admitted the complaint's factual allegations, but it did not admit a violation of SCR 20:8.4(b). Attorney LeSieur, however, subsequently entered into a stipulation, in which he admitted

the facts of his arrest and conviction for OWI (third offense) and also conceded that his conduct violated SCR 20:8.4(b).

¶ 6 The stipulation did not contain any agreement regarding the appropriate level of discipline to be requested. Consequently, the parties filed memoranda addressing the issue of sanction.

¶ 7 The OLR requested a public reprimand, primarily contending that the concept of progressive discipline required a more serious sanction than the private reprimand imposed for Attorney LeSieur's prior OWI conviction. The OLR pointed out that the private reprimand had not sufficiently deterred Attorney LeSieur from further misconduct because he had operated a motor vehicle while intoxicated just a few days after agreeing to the private reprimand for this same type of conduct.

¶ 8 Attorney LeSieur argued that he should not receive any discipline for his conduct and that he should be diverted to an alternative to discipline program pursuant to SCR 22.10. He contended that discipline was not appropriate because his OWI offense did not directly relate to the practice of law.

¶ 9 The referee found, based on the parties' stipulation, that Attorney LeSieur had engaged in the operation of a motor vehicle while intoxicated and that he had been convicted of a criminal OWI offense, based on his no contest plea. The referee concluded that this conduct constituted a violation of SCR 20:8.4(b).

¶ 10 The referee recommended that Attorney LeSieur receive a conditional private reprimand for his professional misconduct. He suggested that the private reprimand be conditioned on Attorney LeSieur completing a recognized alcohol treatment program and on Attorney LeSieur not committing any alcohol-related

offense for two years following the date of

the reprimand order. The referee recommended that if Attorney LeSieur failed to comply with either condition, the private reprimand should be “converted” to a public reprimand. The referee also recommended that Attorney LeSieur be required to pay the full costs of this disciplinary proceeding.

¶ 11 Following receipt of the referee's report, we issued an order directing Attorney LeSieur to advise as to what alcohol-related treatment he had received since October 2006 and whether he was continuing to receive treatment or to participate in an alcohol-related program. We also directed the OLR to speak with individuals who had provided or were providing alcohol-related treatment or programming to Attorney LeSieur and to file a report that (1) described the nature of Attorney LeSieur's alcohol consumption since October 2006, (2) discussed the alcohol-related treatment or programming he had received, and (3) suggested any conditions that should be placed on Attorney LeSieur's license to practice law in Wisconsin. Attorney LeSieur was given an opportunity to respond to the OLR's report and its suggested conditions. The parties provided the requested information, which we have carefully considered.

¶ 12 Before turning to our analysis of this matter, we note the standard of review that we follow in attorney disciplinary proceedings. We affirm a referee's findings of fact unless they are found to be clearly erroneous. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶ 5, 305 Wis.2d 71, 740 N.W.2d 125. We review the referee's conclusions of law, however, on a de novo basis. Id. Finally, we determine the appropriate level of discipline given the particular facts

of each case, independent of the referee's recommendation, but benefiting from it. in rE disciplinaRY proceedingS againsT widule, 2003 WI 34, ¶ 44, 261 wis.2d 45, 660 N.W.2d 686.

¶ 13 The underlying facts and the legal conclusion that those facts demonstrate a violation of SCR 20:8.4(b) have been stipulated. We therefore accept and adopt the referee's...