Office of Lawyer Regulation v. Tracey A. B. (In re Tracey A.B.)

390 Wis.2d 428

939 N.W.2d 610

2020 WI 18

In the MATTER OF Medical Incapacity Proceedings Against TRACEY A.B., Attorney at Law:

Office of Lawyer Regulation, Complainant,

v.Tracey A. B., Respondent.

No. 2019AP2271-D

Supreme Court of Wisconsin.

Opinion Filed: February 19, 2020

Medical Incapacity Proceeding. Attorney's license indefinitely suspended.

PER CURIAM.

¶1 This matter involves a Wisconsin attorney, Tracey A. Berry, who is also licensed to practice law in Tennessee. On July 29, 2019, the Supreme Court of Tennessee issued an order transferring Attorney Berry to disability inactive status for an indefinite period of time. Accordingly, the Office of Lawyer Regulation (OLR) has informed the court, and Attorney Berry does not dispute, that Attorney Berry is subject to a reciprocal suspension for medical incapacity in Wisconsin. Supreme Court Rule (SCR) 22.22.¹

The OLR and Attorney Berry filed a stipulation pursuant to SCR 22.12, agreeing that Attorney Berry's license to practice law in Wisconsin should be suspended indefinitely for her medical incapacity. After reviewing the matter, we approve the stipulation. We impose no costs in this matter.

¶2 Attorney Berry was admitted to the practice of law in Wisconsin in 2003. She was admitted to the practice of law in Tennessee in 2004. Attorney Berry's most recent professional address is in Tennessee.

¶3 Attorney Berry has not been the subject of any professional discipline in this state. Her license to practice law in Wisconsin has been administratively suspended since October 31, 2009 for failure to pay bar dues and assessments and for failure to file a trust account certificate.

¶4 On December 2, 2019, the OLR filed a complaint stating that on July 25, 2019, the Tennessee Board of Professional Responsibility filed a Petition to Transfer Attorney Berry to Disability Inactive Status. On July 29, 2019, the Supreme Court of Tennessee issued an order that transferred Attorney Berry to disability inactive status for an indefinite period of time until further order of that court. In Re: Tracey Alice Berry, BPR #023508, case no. M2019-01350-SC-BAR-BP. The Tennessee order provides that Attorney Berry may petition for reinstatement pursuant to Tenn. Sup. Ct. R. 9, § 27.7.²

¶5 After service of the OLR's complaint, the OLR and Attorney Berry entered into a stipulation.

The stipulation states that the Supreme Court of Tennessee order has essentially the same force and effect that imposition of a medical incapacity suspension would have on a Wisconsin licensed attorney's ability to practice law. Similarly, the criteria for Attorney Berry to reinstate her Tennessee law license under Tenn. Sup. Ct. R. 9, § 27.7 (a) and (b) and § 27.9³ are substantially similar to the reinstatement criteria considered by this court in medical incapacity proceedings. See SCR 22.36.⁴

¶6 In the stipulation, Attorney Berry agrees that the facts alleged in the OLR's complaint support the imposition of an indefinite suspension for medical incapacity. Attorney Berry states that she does not claim any of the exceptions provided in SCR 22.22(3). She agrees that it would be appropriate to suspend her license to practice law in Wisconsin for an indefinite period of time, as sought by the OLR. Attorney Berry further states that the stipulation did not result from plea bargaining, that she understands what is stated in the OLR complaint, her right to contest the matter, and she is aware of the potential ramifications of the stipulation. She acknowledges her right to consult with counsel. She states that she is entering into the stipulation knowingly and voluntarily, and that her entry into the stipulation represents her decision not to contest the suspension for medical incapacity that is sought by the OLR.

¶7 Having reviewed the matter, we accept the stipulation and agree that Attorney Berry's license to practice law in Wisconsin should be suspended for an indefinite period of time for medical incapacity, based on the actions of the Supreme Court of Tennessee. SCR 22.22. Because this matter has been resolved by stipulation without the appointment of a referee, we do not impose any costs in this matter.

¶8 IT IS ORDERED that, effective the date of this order, the license of Tracey A. Berry to practice law in Wisconsin is suspended for an indefinite period of time due to medical incapacity, based on the Supreme Court of Tennessee order transferring Attorney Berry to disability inactive status for an indefinite period of time. See In Re: Tracey Alice Berry, BPR #023508, case no. M2019-01350-SC-BAR-BP.

¶9 IT IS FURTHER ORDERED that the administrative suspension of Tracey A. Berry's license to practice law in Wisconsin, due to her failure to pay mandatory bar dues and for failure to file a trust account certification, will remain in effect until each reason for the administrative suspension has been rectified pursuant to SCR 22.28(1).

¶10 IT IS FURTHER ORDERED that Tracey A. Berry shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

1 SCR 22.22 provides:

(1) An attorney on whom public discipline for misconduct or a license suspension for medical incapacity has been imposed by another jurisdiction shall promptly notify the director of the matter. Failure to furnish the notice within 20 days of the effective date of the order or judgment of the other jurisdiction constitutes misconduct.

(2) Upon the receipt of a certified copy of a judgment or order of another jurisdiction imposing discipline for misconduct or a license suspension for medical incapacity of an attorney admitted to the practice of law or engaged in the practice of law in this state, the director may file a complaint in the supreme court containing all of the following:

(a) A certified copy of the judgment or order from the other jurisdiction.

(b) A motion requesting an order directing the attorney to inform the supreme court in writing within 20 days of any claim of the attorney predicated on the grounds set forth in sub. (3) that the imposition of the identical discipline or license suspension by the supreme court would be unwarranted and the factual basis for the claim.

(3) The supreme court shall impose the identical discipline or license suspension unless one or more of the following is present:

(a) The procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process.

(b) There was such an infirmity of proof establishing the misconduct or medical incapacity that the supreme court could not accept as final the conclusion in respect to the misconduct or medical incapacity.

(c) The misconduct justifies substantially different discipline in this state.

(4) Except as provided in sub. (3), a

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