IN THE MATTER OF DISCIPLINARY PROC. AGAINST PENN

• Decision Date: 23 January 2002
• Docket Number: No. 95-0536-D.,95-0536-D.
• Parties: IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST David V. PENN, Attorney at Law. OFFICE OF LAWYER REGULATION, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. David V. PENN, Respondent.
• Court: Wisconsin Supreme Court

249 Wis.2d 667

2002 WI 5

638 N.W.2d 287

IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST David V. PENN, Attorney at Law.

OFFICE OF LAWYER REGULATION, f/k/a Board of Attorneys Professional Responsibility, Complainant, v. David V. PENN, Respondent.

No. 95-0536-D.

Supreme Court of Wisconsin.

Filed January 23, 2002.

¶ 1. PER CURIAM

We review the recommendation of the referee that David V. Penn's license to practice law, which this court suspended in 1996 following his conviction on six misdemeanor drug offenses, be reinstated upon certain conditions. Both the Office of Lawyer Regulation (OLR)¹ and the Board of Bar Examiners (BBE) join in that recommendation. No appeal has been filed in this matter.

¶ 2. We adopt the referee's findings of fact and conclusions of law and agree with his recommendation that David V. Penn's license to practice law be reinstated and that David V. Penn pay the costs of this reinstatement proceedings totaling $6803.64; however, we conclude that rather than being given only six months to pay the costs of this matter as recommended by the referee, David V. Penn shall have one year from the date of this order to pay such costs. ¶ 3. In 1996 when this court suspended David V. Penn's license to practice law following his conviction on six misdemeanor drug offenses, this court wrote:

We determine that the recommended two-year license suspension is appropriate discipline to impose for Attorney Penn's professional misconduct. The seriousness of his criminal conduct in using illegal drugs is exacerbated by the fact that it occurred in the context of his official position as district attorney, a position of public trust in the legal system to which the people of his county elected him. His repeated contravention of the criminal law, which was widely known in the community, caused significant and unjustified damage to the public's perception of the integrity of law enforcement personnel throughout the county.

Disciplinary Proceedings Against David V. Penn, 201 Wis. 2d 405, 406, 548 N.W.2d 526 (1996).

¶ 4. On June 14, 2000, David V. Penn filed a petition for reinstatement of his license to practice law. As noted, that petition was referred to a referee pursuant to SCR 22.30.² The referee held a public hearing on the reinstatement petition where evidence was presented on behalf of the petitioner as well as OLR; two members of the public also appeared and presented information. Following that hearing the referee found that since his license suspension, David Penn has completed the court-ordered period of probation for the criminal charges, has addressed his drug dependency by undergoing voluntary in-patient treatment and has submitted to random drug testing, and has paid the costs of the disciplinary proceeding leading to his suspension. Furthermore, the referee determined that David Penn has fulfilled all the requirements set forth in SCR 22.26 for an attorney whose license has been suspended and Penn has attended continuing legal education programs and obtained a sufficient number of credits to be in compliance with the BBE requirements.

¶ 5. In addition, the referee noted that Penn has been comprehensively evaluated for alcohol and other drug use issues by a physician and by an AODA expert, both of whom were of the opinion that Penn may safely be recommended to resume the practice of law.

¶ 6. Furthermore, according to the referee, no evidence was presented at the public hearing to cast doubt on David Penn's qualifications to practice law. Consequently, the referee concluded that David V. Penn could be safely recommended to be reinstated to the practice of law, a recommendation in which both the BBE and the OLR joined.

¶ 7. We make two observations about questions identified in the referee's report. First the referee questioned the scope of the reinstatement proceeding and whether testimony and evidence presented at the public hearing should be restricted to the elements listed in SCR 22.29(4)³ required in the reinstatement petition. On the other hand, the referee stated that although it was "fairly obvious" that the hearing on the petition for reinstatement should not amount to a retrial of the original disciplinary case, the referee wondered if the scope of the reinstatement hearing could properly extend to the facts and behavior which were the subject of the disciplinary proceedings and which led to the license suspension in the first place.

[1, 2]

¶ 8. We believe that the rules contemplate that the referee conducting a hearing on the petition for reinstatement must engage in a full and unrestricted evaluation of the petitioner's past, present, and predicted future behavior, as well as any other relevant information going to the issue of whether the petitioner has the moral character to practice law in this state and whether his or her resumption of the practice of law would be detrimental to the administration of justice or subversive of the public interest. We point out that SCR 22.29 lists the requirements a petition for reinstatement must show. However, SCR 22.30 dealing with the reinstatement procedure itself, as well as the provisions in SCR 22.31⁴ describing the reinstatement hearing, bolster the conclusion that the reinstatement hearing if necessary can be far-ranging and not limited to addressing the listed petition requirements in SCR 22.29(4). This court has in prior cases when considering whether an attorney's license to practice shall be reinstated, examined the gravity of the underlying misconduct which led to the license suspension or revocation. See Disciplinary Proceedings Against Hersh, 108 Wis. 2d 450, 321 N.W.2d 927 (1982); see also Disciplinary Proceedings Against Hyndman, 2002 WI 6, 249 Wis. 2d 650, 638 N.W.2d 293, decided this date. We believe that the petitioner's activities leading to the suspension of his or her license to practice law may indeed be relevant to the referee's determination of whether that petitioner has demonstrated by clear, satisfactory, and convincing evidence that he or she has the moral character to resume the practice of law in this state and that such resumption would not be detrimental to the administration of justice or subversive to the public interest. See SCR 22.31.

[3]

¶ 9. After a review of the record we conclude that the hearing on the reinstatement petition conducted by the referee in this case was sufficient and that, as the referee determined, David Penn has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria for reinstatement.

¶ 10. Accordingly, we agree with the referee's recommendation that David V. Penn's license to practice law in this state be reinstated.

¶ 11. The second observation made by the referee in his report dealt with the authority to impose costs of the reinstatement proceedings on the petitioner. According to the referee, the current rules contain no specific provision authorizing the imposition of costs associated with the reinstatement proceeding.

[4, 5]

¶ 12. We do not share the referee's doubts about the authority to impose costs in a reinstatement proceeding. As the referee observed, SCR 22.29(5) specifically provides that "[a] petition for reinstatement ... shall be accompanied by an advance deposit in the amount to be set by the supreme court for payment of all or a portion of the costs of the reinstatement proceeding." In this case, David Penn's petition for reinstatement was, in fact, accompanied by the required advance deposit of $200 for costs. This rule, as well as the general provisions set out for disciplinary proceedings in SCR 22.11 through SCR 22.24, supports the referee's conclusion in this case that costs could be imposed against this petitioner in this reinstatement proceeding. Thus, we adopt the referee's recommendation that David Penn be required, as a condition of reinstatement, to pay the costs of these reinstatement proceedings now totaling $6803.64. We determine, however, that rather than being given only six months to pay such costs, that the petitioner may have one year from the date of this opinion within which to pay such costs. Accordingly, we grant Attorney David V. Penn's petition to reinstate his license to practice in this state.

¶ 13. IT IS ORDERED that the petition for reinstatement of the license of David V. Penn to practice law in Wisconsin is granted, effective the date of this order, upon the condition that he comply with the current CLE requirements.

¶ 14. IT IS FURTHER ORDERED that David V. Penn pay the costs of this reinstatement proceeding totaling $6803.64 within one year of the date of this order.

¶ 15. DAVID T. PROSSER, J. (concurring in part, dissenting in part).

I concur in that portion of the court's decision and order reinstating the license to practice law of Attorney David V. Penn. I dissent from the court's determination imposing all costs of this reinstatement proceeding ($6803.64) on Attorney Penn. These costs raise disturbing questions and require comment.

¶ 16. Attorney Penn was admitted to the State Bar of Wisconsin in May 1986. He was elected Vilas County District Attorney in November 1986 and reelected in 1988 and 1990. During this period in public office, Penn developed drug and chemical dependency problems resulting in violations of criminal law. In January 1993, after he left office, he was convicted of six misdemeanor drug offenses involving the use of marijuana and cocaine, and he served jail time as a condition of his probation.

¶ 17. In July 1992 Penn voluntarily suspended his practice of law. He was officially suspended from membership in the State Bar of Wisconsin in October 1993 for failure to pay membership dues. He was formally suspended by the court for a period of two years in June 1996. The record shows that Penn has not practiced law for more than nine years.

¶ 18. The record also shows, however, that in recent years Penn has made a serious and sustained...