IN THE MATTER OF DISCIPLINARY PROCEEDINGS AGAINST HYNDMAN

• Decision Date: 23 January 2002
• Docket Number: No. 88-1616-D.,88-1616-D.
• Citation: 2002 WI 6,249 Wis.2d 650,638 N.W.2d 293
• Parties: IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Robert J. HYNDMAN, Attorney at Law: BOARD OF ATTORNEYS PROFESSIONAL RESPONSIBILITY, n/k/a Office of Lawyer Regulation, Complainant, v. Robert J. HYNDMAN, Respondent.
• Court: Wisconsin Supreme Court

249 Wis.2d 650

2002 WI 6

638 N.W.2d 293

IN the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Robert J. HYNDMAN, Attorney at Law:

BOARD OF ATTORNEYS PROFESSIONAL RESPONSIBILITY, n/k/a Office of Lawyer Regulation, Complainant, v. Robert J. HYNDMAN, Respondent.

No. 88-1616-D.

Supreme Court of Wisconsin.

Filed January 23, 2002.

¶ 1. PER CURIAM

Effective June 1, 1989, this court revoked Robert J. Hyndman's license to practice law in this state for professional misconduct consisting of his neglect of legal matters and his dishonesty, deceit or misrepresentation to his clients, commingling of personal and client funds, failure to maintain complete records of client funds in his possession and promptly pay those funds to clients upon request, filing a false certificate concerning his client trust account, misrepresentation of his practice as being a partnership, failure to promptly deliver client papers to successor counsel, and engaging in the practice of law in violation of this court's rules. Disciplinary Proceedings Against Hyndman, 149 Wis. 2d 487, 439 N.W.2d 129 (1989). At the time of that prior disciplinary proceeding, Attorney Hyndman had been charged but not then convicted of criminal acts. In response to Hyndman's objection that this court in the context of the disciplinary case should not consider the then-pending criminal matter, this court agreed that it was unnecessary to address the pending criminal charge because the referee had recommended license revocation as discipline for Hyndman's other acts of professional misconduct and there was no more severe sanction available. This court asserted, however, that it could, in the future if appropriate, consider the criminal matter if Hyndman were to seek reinstatement of his license to practice law. Id. at 495-96.

¶ 2. Following this court's decision revoking his license to practice law, Hyndman was convicted on the criminal charge of solicitation to commit a felony, delivery of cocaine. Hyndman received a 30-month sentence for that conviction. That conviction was affirmed in State v. Hyndman, 170 Wis. 2d 198, 488 N.W.2d 111 (Ct. App. 1992). Hyndman served eight months of that sentence and was released on parole in September 1993.

¶ 3. On February 9, 2000, Hyndman filed a petition seeking reinstatement of his license to practice law.¹ A public hearing on Hyndman's petition for reinstatement was held and the District 2 Professional Responsibility Committee recommended that the petition for reinstatement be granted. The director of OLR agreed that under the totality of the circumstances, Hyndman's license to practice law in this state should be reinstated.

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¶ 4. Although we agree with the recommendation from the district professional responsibility committee and the director that Hyndman's license be reinstated, we must note our grave concern about Hyndman's criminal activities and his felony drug conviction, factors that were expressly not considered by this court when we revoked his license to practice law in 1989. In past cases we have examined the gravity of the underlying misconduct by the attorney and denied reinstatement. See Disciplinary Proceedings Against Hersh, 108 Wis. 2d 450, 321 N.W.2d 927 (1982). We see nothing in our prior attorney disciplinary decisions implying that a petitioner for reinstatement enjoys a presumption of rehabilitation upon the expiration of a specified term of suspension—or in this case upon service of sentence imposed for a criminal conviction—where no evidence of intervening or subsequent misconduct is present. Under the former SCR rules, see SCR 22.28(6), as well as the new ones,² a petitioner for reinstatement has the burden of demonstrating by clear and convincing evidence that he or she possesses the requisite moral character to practice law in Wisconsin and that resumption of practice will not be detrimental to the integrity and standing of the bar or the administration of justice or be subversive of the public interest. See Disciplinary Proceedings Against Hetzel, 118 Wis. 2d 257, 268, 346 N.W.2d 782 (1984). At the same time, however, we acknowledge that under former SCR 21.03(5), which was in effect at the time of Hyndman's revocation, it was expressly stated that the imposition of discipline for misconduct is not intended as a punishment for wrongdoing; rather, discipline is imposed to protect the public, the courts, and the legal profession. Our review of the record in this matter now leads us to believe that the petitioner has met his burden and that he can now safely be reinstated to the practice of law in this state. We think that Hyndman's reinstatement and resumption of the practice of law will not endanger the public, the courts, or the legal profession.

¶ 5. The report submitted by the District 2 Professional Responsibility Committee contained the following conclusions supporting its recommendation that Hyndman's license to practice law be reinstated:

This Petitioner has waited eleven years to petition for reinstatement of his law license. He has been sober for ten years and will be active in AA the rest of his life. He has maintained steady employment, done laudable volunteer work, established a strong, loving family, reconnected with his family of origin and, generally, paid his debt to society. Although he served time in prison and found it necessary to declare bankruptcy, he has made all restitution and has the promise of a job with his brother if his license is reinstated. The witnesses Petitioner presented at the reinstatement hearing were credible and convincing.... It is the committee's considered opinion that Robert Hyndman has made significant and lasting life-style changes coupled with an intense desire to resume the practice of law.

¶ 6. As noted, the OLR director agrees and recommends that Hyndman's petition for reinstatement be granted.

¶ 7. Other than noting our concern about the gravity of Hyndman's prior criminal activities as discussed above, we deem it necessary to discuss only one additional area of concern addressed by both the district responsibility committee and the OLR director in his report. The question that was raised, and ultimately resolved in Hyndman's favor, focused on whether Hyndman had been practicing law while under revocation when he represented his employer in replevin actions in small claims court and made appearances at creditors' meetings in federal bankruptcy proceedings where he filed claims on behalf of his employer. Both former and current SCR 22.26(2)³ proscribe practicing law while under revocation or suspension. The subcommittee of the district responsibility committee which conducted the public hearing on Hyndman's reinstatement petition considered in detail Hyndman's activities on behalf of his employer. One of the members of that committee requested a research memo from an employee of his firm, discussing whether Hyndman's appearances on behalf of his employer in replevin actions in small claims court and at creditors' meetings where Hyndman filed claims on behalf of his employer in bankruptcy proceedings, constituted practicing law within the proscription of the rule. The research memo suggested that Hyndman's activities did, in fact, constitute the practice of law.

¶ 8. The committee, however, rejected that conclusion and instead determined that because the actions Hyndman took on behalf of his employer could be—and frequently were—performed by non-lawyers, his activities fell within the exception in the rule permitting a suspended or revoked attorney to perform "law related work for a commercial employer." Thus, Hyndman had not violated SCR 22.26(2).

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¶ 9. We agree. First we note that Wis. Stat. § 799.06 (1999-2000)⁴ permits non-lawyers, if an authorized and full-time employee, to appear on behalf of another "person" in small claims actions. In Jadair Inc. v. United States First Ins. Co., 209 Wis. 2d 187, 562 N.W.2d 401 (1997), this court pointed out that this statute, which permits an authorized full-time employee to appear in small claims actions on behalf of an employer, is an exception to the general proscription against practicing law without a license set out in Wis. Stat. § 757.30. The Jadair court noted the fiction in Wis. Stat. § 799.06(2) that in a small claims action, the non-lawyer appearing for his or her employer is considered to be the "party" to the action. Id. at 198 n.10. See also Holz v. Busy Bees Contracting, Inc., 223 Wis. 2d 598, 589 N.W.2d 633 (Ct. App. 1998), where the court of appeals held that a non-lawyer president of a corporation could file a notice of appeal in a small claims action on behalf of the corporation.

¶ 10. The writer of the research memo submitted to the district committee in this case reasoned that although the activities permitted under Wis. Stat. § 799.06(2) may not constitute practicing law under Wis. Stat. § 757.30, that does not mean that those same activities should not be considered "practicing law" within the prohibition of SCR 22.26(2). In other words, the writer of the research memo took the position that even though a non-lawyer may represent his or her employer in a small claims action under Wis. Stat. § 799.06(2) without violating Wis. Stat. § 757.30, if that non-lawyer is a suspended or revoked attorney, those same acts on behalf of his or her employer would violate SCR 22.26(2). The memo-writer's underlying premise was that actions that may be permissible for non-lawyers, are not permissible for suspended or revoked attorneys because the latter were once licensed to practice law and, consequently, must be held to higher standards.

¶ 11. Likewise, the writer of the research memo concluded that Hyndman's activities on behalf of his employer in the bankruptcy proceedings—even though Hyndman did not appear before a judge and even though those same activities were also regularly performed by non-lawyers—constituted appearances before a governmental body in an effort to...