Office of Lawyer Regulation v. Parks (In re Parks)

395 Wis.2d 500

953 N.W.2d 873

2021 WI 10

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Daniel PARKS, Attorney at Law:

Office of Lawyer Regulation, Complaint-Respondent,

v.Daniel Parks, Respondent-Appellant.

No. 2016AP85-D

Supreme Court of Wisconsin.

Opinion Filed: February 11, 2021

ATTORNEY reinstatement proceeding. Reinstatement denied.

PER CURIAM.

¶1 We review a report filed by Referee John Nicholas Schweitzer, recommending that the court reinstate Attorney Daniel Parks’ license to practice law in Wisconsin. After careful review, we disagree with the recommendation and we deny Attorney Parks’ reinstatement petition. We direct Attorney Parks to pay the full costs of this reinstatement proceeding, which are $6,370.43 as of July 16, 2020.

¶2 Attorney Parks was admitted to the practice of law in Wisconsin in September 1991. In 2013, Attorney Parks announced he was leaving the law firm where he had been employed for 18 years. Following Attorney Parks’ departure, the law firm filed a grievance with the Office of Lawyer Regulation (OLR) stating, among other things, that it had discovered that Attorney Parks had performed unauthorized legal work "on the side" ("non-firm work") while employed by the firm. An investigation ensued and in 2016, the OLR filed a disciplinary complaint against Attorney Parks, alleging 19 counts of professional misconduct and seeking a two-year license suspension.

¶3 Following extensive litigation, amended complaints, and an appeal, this court accepted the referee's conclusion that Attorney Parks had committed eight of 14 alleged counts of misconduct.¹

See In re Disciplinary Proceedings Against Parks, 2018 WI 110, 384 Wis. 2d 635, 920 N.W.2d 505. We suspended Attorney Parks’ law license for 14 months for:

• Earning fees from non-firm legal work while employed by the firm, in violation of Supreme Court Rule (SCR) 20:8.4(c) and SCR 20:8.4(f);

• Arranging for two clients to perform work for him in exchange for a reduction of legal fees and otherwise reducing attorney fees without the firm's permission, in violation of SCR 20:8.4(c) and SCR 20:8.4(f);

• Accepting an unauthorized $5,000 "gift" from two clients in violation of SCR 20:8.4(c) and SCR 20:8.4(f);

• Working on client files on an unsecured offsite computer belonging to another person, in violation of SCR 20:1.6(a); and

• Obtaining two signatures on a "release" designed to limit Attorney Parks’ liability, without properly clarifying his role in the matter in violation of SCR 20:8.4(c).²

¶4 In January 2020, Attorney Parks filed a petition for reinstatement.³ The OLR opposed Attorney Parks’ petition for three primary reasons: (1) the OLR had learned of an action involving Attorney Parks’ insurance license; (2) the OLR had concerns about aspects of Attorney Parks’ 2018 tax returns; and (3) the OLR argued that Attorney Parks’ failure to reimburse his former firm and two clients reflected adversely on his request for reinstatement.

¶5 On May 29, 2020, the parties filed a partial stipulation regarding Attorney Parks’ insurance license. The referee conducted an evidentiary hearing on the reinstatement petition in June 2020. On June 24, 2020, the referee filed a report recommending that this court grant Attorney Parks’ reinstatement petition and impose the costs of the reinstatement proceeding on Attorney Parks. Neither party appealed from the referee's recommendation so we consider this matter pursuant to SCR 22.33(3).⁴

¶6 The standards that apply to a petition for reinstatement after a disciplinary suspension are set forth in SCR 22.31(1).⁵ The petitioning attorney must demonstrate by clear, satisfactory, and convincing evidence that the attorney has the moral character necessary to practice law in this state, that the attorney's resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the attorney has complied fully with the terms of the suspension or revocation order and the requirements of SCR 22.26. In addition, SCR 22.31(1) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4)(a)-(k) and (4m).⁶ Thus, the petitioning attorney needs to demonstrate that the required representations in the reinstatement petition are substantiated.

¶7 On review, we accept a referee's findings of fact unless they are clearly erroneous. We review a referee's legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. See In re Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334 Wis. 2d 335, 801 N.W.2d 304 ; In re Disciplinary Proceedings Against Gral, 2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168. We benefit from the referee's findings and conclusions, particularly when, as here, the referee has provided us with such a thoughtful and well-structured report. However, we are not bound by the referee's recommendation or by the OLR's restitution policy. In re Disciplinary Proceedings Against Nussberger, 2009 WI 103, 321 Wis. 2d 576, 775 N.W.2d 525 ; see also In re Disciplinary Proceedings Against Langer, 213 Wis. 2d 125, 569 N.W.2d 465 (1997). The ultimate determination of who may practice law in Wisconsin remains with this court. Here, we accept the referee's findings, but we reach a different conclusion of law with respect to SCRs 22.29(4)(e),(4m) and 22.31(1)(a).

¶8 The OLR did not dispute and the referee found that Attorney Parks satisfied a number of the requirements for reinstatement. He demonstrated that he desires to have his license reinstated, SCR 22.29(4)(a) ; that he has not practiced law during the period of his suspension, SCR 22.29(4)(b) ; that he has complied fully with the terms of the order of suspension and will continue to comply with them until his license is reinstated, SCR 22.29(4)(c) ;⁷ and that he has maintained competence and learning in the law, SCR 22.29(4)(d).⁸ The referee found that Attorney Parks fully complied with the requirements set forth in SCR 22.26 as required by SCR 22.29(4)(h) ; explained how he would use his license if reinstated, SCR 22.29(4)(j) ; and outlined his activities during his suspension, SCR 22.29(4)(k). We accept the referee's findings and conclusions with respect to these criteria.

¶9 The more challenging questions involved whether Attorney Parks has the moral character to practice law in Wisconsin, as required by SCR 22.31(1)(a), and whether he met his burden with respect to SCR 22.29(4)(e) (requiring that the petitioner's conduct since the suspension has been exemplary and above reproach); SCR 22.29(4)(f) (requiring that the petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards); SCR 22.29(4)(g) (requiring that the petitioner can safely be recommended to the legal profession, the courts, and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts). Another concern pertains to Attorney Parks’ obligation to make restitution to or settle all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin Lawyers’ Fund for Client Protection for all payments made from that fund, or, if not his explanation of the failure or inability to do so. SCR 22.29(4m). Failure to satisfy this criterion bears, in turn, on whether a petitioner has the moral character to practice law in Wisconsin. SCR 22.31(1)(a).

I. THE INSURANCE LICENSE INVESTIGATION

¶10 The referee's findings with respect to the insurance license matter derive from a partial stipulation executed by the parties as well as evidence from the reinstatement hearing. In 1998, Attorney Parks was licensed by the Office of the Commissioner of Insurance (OCI) as a Wisconsin resident insurance intermediary, which authorized him to sell life, fixed and variable annuities, accident and health insurance. To hold this particular license, Wisconsin residents must maintain active Financial Industry Regulatory Authority (FINRA) Series 6 or 7 Registration (FINRA Registration) and provide OCI with a "Central Registration Depository" number.

¶11 The parties stipulated that Attorney Parks was duly registered through April 2014. However, from April 2014 to January 24, 2019, Attorney Parks did not have the appropriate FINRA registration.⁹ Yet, in his 2017 insurance license renewal application, Attorney Parks indicated that he was eligible to continue to hold the Variable Life/Variable Annuity lines of authority¹⁰ and he failed to timely notify the OCI that he was ineligible to hold the Variable Life/Variable Annuity lines of authority due to the termination of his FINRA registration.¹¹ He also failed to disclose to the OCI the lawyer disciplinary proceeding that was then pending against him, as well as his business address.¹² Ultimately, Attorney Parks and the OCI resolved the insurance matter by stipulation. Attorney Parks consented to the revocation of his insurance license, the imposition of a forfeiture, and the condition that he not seek relicensure in the future.

¶12 At the reinstatement hearing Attorney Parks was questioned at length about this issue. Attorney Parks explained that when he obtained and later renewed his insurance license he sought guidance from an insurance professional, an individual who was a financial advisor and a regional vice-president for Primerica, for whom Attorney Parks worked at the time. Attorney Parks explained that in 2014, Primerica informed its agents that they considered estate planning to present a possible conflict of interest with certain types of insurance; anyone who was doing both should give one up. So, Attorney Parks opted to resign from Primerica in April 2014 in order to continue his estate planning practice.

¶13...