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

391 Wis.2d 782

943 N.W.2d 566

2020 WI 51

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Elvis C. BANKS, Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Elvis C. Banks, Respondent.

No. 2002AP1871-D

Supreme Court of Wisconsin.

Opinion Filed: June 3, 2020

ATTORNEY reinstatement proceeding. Reinstatement granted, with conditions.

PER CURIAM.

¶1 We review a report filed by Referee John B. Murphy, recommending that the court reinstate, with conditions, Elvis C. Banks' license to practice law in Wisconsin. After careful review of the matter, we agree that Attorney Banks' license should be reinstated and that conditions should be placed upon his practice of law. We also conclude that Attorney Banks should be required to pay the full costs of this reinstatement proceeding, which are $4,205.80 as of September 18, 2019.

¶2 Attorney Banks was admitted to the practice of law in Wisconsin in September 1997. This court revoked his license to practice law in this state on July 16, 2003. See In re Disciplinary Proceedings Against Banks, 2003 WI 115, 265 Wis. 2d 45, 665 N.W.2d 827. In that disciplinary proceeding, Attorney Banks pled no contest to 42 separate counts of professional misconduct arising out of 20 separate representations. The counts included eight violations involving dishonesty, fraud, deceit, or misrepresentation; 11 violations for failure to follow client trust account rules; ten violations for failing to provide competent representation; eight violations for failing to act with reasonable diligence and promptness in representing a client; and one violation for knowingly disobeying an obligation under the rules of a tribunal. In addition to pleading no contest to the 42 counts mentioned above, Attorney Banks also filed a petition for consensual license revocation, in which he admitted that he could not defend against 17 additional counts of misconduct in another seven client matters. Because we revoked his license on the basis of the 42 counts in the then-pending disciplinary proceeding, we deemed it unnecessary to rule on the additional misconduct disclosed in the petition for consensual license revocation.

¶3 Attorney Banks filed a petition for reinstatement of his license to practice law in May of 2009. This court denied the petition for reinstatement, agreeing with the referee that Attorney Banks had failed to satisfy the requirements for reinstatement. In re Disciplinary Proceedings Against Banks, 2010 WI 105, 329 Wis. 2d 39, 787 N.W.2d 809.

¶4 On June 29, 2018, Attorney Banks filed a second reinstatement petition. After an investigation, the Office of Lawyer Regulation (OLR) filed a response on March 25, 2019, stating that it opposed Attorney Banks' reinstatement due to various concerns, including his failure to pay $11,430.04 in costs owed in connection with his 2003 disciplinary case and his first attempt at reinstatement, and his failure to pay $900 in restitution to the Wisconsin Lawyers' Fund for Client Protection, which had made a payment in that amount arising from his misconduct.

¶5 The referee then held a public hearing on the reinstatement petition, at which only Attorney Banks testified.

¶6 The parties filed post-hearing memoranda. As will be explained in more detail below, the OLR stated in its post-hearing memorandum that, based upon consideration of the complete record and in light of a post-hearing commitment by Attorney Banks to pay the OLR $300 per month toward his outstanding costs obligation, the OLR no longer opposed Attorney Banks' reinstatement.

¶7 On September 6, 2019, the referee filed a report recommending that this court conditionally grant Attorney Banks' reinstatement petition. Among other things, the referee found that, since his revocation, Attorney Banks has "applied himself diligently to getting his life back on track"—efforts that are "impressive" and "give insight into the strength of [his] character." The referee found that Attorney Banks currently works as a school teacher and a security guard. The referee found that Attorney Banks has remained current with his continuing legal education requirements.¹ The referee found that, if reinstated, Attorney Banks does not intend to practice law in Wisconsin, but rather plans to use his Wisconsin law license to help him become licensed to practice law in Tennessee or Mississippi. The referee found that Attorney Banks has committed to pay the OLR $300 per month toward his outstanding costs obligations. Ultimately, the referee wrote that he "concur[red] with the OLR recommendation that [Attorney] Banks' license to practice law in Wisconsin should be reinstated." The referee proposed that the court impose the following two conditions on Attorney Banks' reinstatement: (1) that he fully comply with his costs payment agreement with the OLR; and (2) that he annually provide the OLR with a summary of his finances.

¶8 Neither party appeals from the referee's recommendation, so the court considers this matter pursuant to SCR 22.33(3).²

¶9 In our 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.

¶10 Supreme Court Rule 22.29(4) provides that a petition for reinstatement must show all of the following:

(a) The petitioner desires to have the petitioner's license reinstated.

(b) The petitioner has not practiced law during the period of suspension or revocation.

(c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.

(d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.

(e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.

(f) 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.

(g) 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.

(h) The petitioner has fully complied with the requirements set forth in SCR 22.26.³

(j) The petitioner's proposed use of the license if reinstated.

(k) A full description of all of the petitioner's business activities during the period of suspension or revocation.

¶11 Supreme Court Rule 22.29(4m) requires the petitioner to show that he or she has made restitution to or settled all claims of persons injured or harmed by the petitioner's misconduct, including reimbursement to the Wisconsin Lawyers' Fund for Client Protection for all payments made from that fund, or explained the failure or inability to do so.

¶12 Supreme Court Rule 22.31(1)(c) provides that an attorney seeking reinstatement has the burden of demonstrating all of the above requirements by clear, satisfactory, and convincing evidence. Supreme Court Rule 22.31(1) also provides that an attorney seeking reinstatement must show by clear, satisfactory, and convincing evidence that he or she has the moral character to practice law; that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive to the public interest; and that he or she has complied with SCR 22.26 and the terms of the underlying disciplinary order. See SCR 22.31(1)(a), (b), and (d).

¶13 Our review of this matter is complicated by the fact that the referee did not make specific findings or conclusions with respect to a number of the criteria required for reinstatement. Instead, the referee primarily focused on what he viewed as the most significant challenge facing Attorney Banks' reinstatement petition: his failure to pay $11,430.04 in costs owed in connection with his 2003 disciplinary case and his first attempt at reinstatement.

¶14 To be sure, Attorney Banks' outstanding costs obligation was an important factor for the referee to consider. Outstanding costs obligations must be addressed in reinstatement proceedings, see SCR 22.29(4)(c) and 22.31(1)(d), and their existence bears on many of the reinstatement criteria. But as our above discussion of SCR 22.29(4), (4m), and 22.31(1) shows, there are many other factors that must be taken into account, and the referee's report suffers for having failed to explicitly and thoroughly do so.

¶15 Although the referee's report is lacking in this respect, we opt not to remand this matter to the referee for additional findings and conclusions, for two reasons. First, further proceedings before the referee would generate additional costs for Attorney Banks—who, the record shows, already has considerable financial obligations—and would serve to delay the disposition of this matter further. Second, in its post-hearing memorandum filed with the referee, the OLR agreed that Attorney Banks has satisfied all requirements for reinstatement, and the referee endorsed this agreement between the parties. Specifically, the OLR wrote:

To gain reinstatement, [Attorney] Banks must prove by clear, satisfactory, and convincing evidence that: (a) he has the moral character to practice law; (b) his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest; (c) his representations in the reinstatement petition, including the representations required by SCR 22.29(4)(a)-(k), (4m), and (5), are substantiated; and (d) he has complied fully with the terms of the revocation order

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