Office of Lawyer Regulation v. Johns (In re Disciplinary Proceedings Against Daniel W. Johns)

• Decision Date: 06 June 2014
• Docket Number: No. 2011AP2760–D.,2011AP2760–D.
• Parties: In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Daniel W. JOHNS, Jr., Attorney at Law: Office of Lawyer Regulation, Complainant–Appellant, v. Daniel W. Johns, Jr., Respondent–Respondent.
• Court: Wisconsin Supreme Court

353 Wis.2d 746

847 N.W.2d 179

2014 WI 32

In the Matter of DISCIPLINARY PROCEEDINGS AGAINST Daniel W. JOHNS, Jr., Attorney at Law:

Office of Lawyer Regulation, Complainant–Appellant,

v.Daniel W. Johns, Jr., Respondent–Respondent.

No. 2011AP2760–D.

Supreme Court of Wisconsin.

Argued April 23, 2013.

Decided June 6, 2014.

For the Office of Lawyer Regulation there were briefs by Thomas J. Basting Sr., Madison, and oral argument by Thomas J. Basting Sr.

For the respondent-respondent, there was a brief by Dean R. Dietrich, and Ruder Ware L.L.S.C., Wausau, and oral argument by Dean R. Dietrich.

ATTORNEY disciplinary proceeding. Complaint dismissed.

PER CURIAM.

¶ 1 In this disciplinary proceeding, the referee concluded that the Office of Lawyer Regulation (OLR) had proven violations on one of two counts contained in the complaint filed by the OLR. Based on that violation, the referee recommended that Attorney Daniel W. Johns, Jr., be either privately or publicly reprimanded. The OLR appeals from the referee's report and recommendation, arguing that the court should determine that Attorney Johns committed both counts of misconduct and should be suspended for 60 days.

¶ 2 After independently reviewing the record, we accept the facts as found by the referee. We agree with the referee's conclusion that Attorney Johns' conduct resulting in a 2004 felony conviction does not reflect adversely on his honesty, trustworthiness,or fitness as a lawyer in other respects so as to violate SCR 20:8.4(b).¹ We disagree with the referee's conclusion that Attorney Johns violated SCR 21.15(5),² as enforced via SCR 20:8.4(f),³ by failing to notify the clerk of the supreme court and the OLR, in writing, of his conviction. We conclude that Attorney Johns' violation of SCR 21.15(5) was too technical to justify the imposition of legal consequences. Accordingly, the complaint is dismissed.

¶ 3 Attorney Johns was admitted to the practice of law in Wisconsin in 1999. He has no disciplinary history.

¶ 4 On November 30, 2011, the OLR filed a two-count complaint against Attorney Johns. This court appointed the Honorable James R. Erickson as referee. The referee held an evidentiary hearing on June 28, 2012. Both parties submitted post-hearing briefs.

¶ 5 The referee submitted a report containing his findings of fact, conclusions of law, and a recommendation for discipline. The findings of fact incorporated a stipulation between the parties and a series of exhibits attached to that stipulation. The findings of fact and conclusions of law are summarized below.

¶ 6 When reviewing the referee's report, we will affirm the referee's findings of fact unless they are found to be clearly erroneous, but we will review the referee's conclusions of law on a de novo basis. See In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶ 5, 305 Wis.2d 71, 740 N.W.2d 125.

¶ 7 Shortly before 1:00 a.m. on December 28, 2002, when he was 29 years old, Attorney Johns was the driver in a deadly one-vehicle drunk driving accident. Earlier that evening, Attorney Johns had met his father, stepmother, brother, and other family members at a restaurant in northern Wisconsin to celebrate the holidays. After dinner, Attorney Johns and his brother stayed at the restaurant bar with friends. When the restaurant closed, Attorney Johns and his brother left in Attorney Johns' pickup truck, with Attorney Johns driving. According to the police report, it is unlikely that either Attorney Johns or his brother were wearing seatbelts. Attorney Johns drove too fast as he turned from U.S. Highway 51 onto a county highway. Attorney Johns lost control of the truck, causing it to skid off the roadway and strike a tree. Attorney Johns' brother was partially ejected from the truck; his head hit the tree, causing fatal injuries. Medical personnel arrived at the scene and transported Attorney Johns' brother to the hospital, where he was declared dead.

¶ 8 Attorney Johns was also transported to the hospital. He was in great distress over his brother's death. He had a cut above his eye, but did not permit medical staff to treat his injury. He also had a strong odor of intoxicants and slurred speech.

¶ 9 Police concluded that, given Attorney Johns' head injury and emotional state, standard field sobriety exercises would be inaccurate and inappropriate. Attorney Johns refused to submit to a blood draw. A police officer directed hospital personnel to draw a sample of Attorney Johns' blood. Attorney Johns had a blood alcohol content of .257%.

¶ 10 Attorney Johns was arrested and, after being read his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), declined to answer any questions and invoked his right to counsel.

¶ 11 On June 10, 2004, Attorney Johns pled guilty to and was convicted of one count of homicide by use of a vehicle with a prohibited alcohol concentration. Attorney Johns has no other criminal history.

¶ 12 Before the circuit court accepted Attorney Johns' plea, there was some confusion amongst the parties and the court as to whether a conviction on this count would result in an automatic revocation of Attorney Johns' law license. Attorney Johns' lawyer stated that it was his understanding that a felony conviction would not result in an automatic revocation of Attorney Johns' law license, but rather that the OLR would need to examine the nature of the crime and its relation to Attorney Johns' fitness to practice law. The circuit court expressed uncertainty on this point. The circuit court ordered a recess and directed the prosecutor, defense counsel, and Attorney Johns to telephone the OLR and resolve the issue. They did so in an off-the-record telephone conversation.

¶ 13 When the parties returned on the record, Attorney Johns' lawyer stated as follows:

Judge, we were successful in getting hold of the Office of Lawyer Regulation. We talked to the deputy director, John O'Connell is his name, and he advised us that my understanding of what would happen here with regard to OLR action was correct and I actually advised Mr. Johns correctly regarding all of that.

To summarize, in the State of Wisconsin there is not any provision that calls for an automatic revocation or suspension of license based solely upon the felony conviction. Mr. O'Connell referenced the standards that I referenced previously on the record, and that if there were any action taken, it would bear upon Mr. Johns' fitness to practice law and would not relate to the nature, the classification of the conviction but rather the facts and circumstances of the conduct.

¶ 14 With this explanation on the record, the circuit court accepted Attorney Johns' plea and entered a judgment of conviction. The circuit court sentenced Attorney Johns to 120 days in jail, with five years of probation.

¶ 15 Attorney Johns served his jail time and was released on probation. At the halfway point of Attorney Johns' probation, his probation agent recommended that he petition for early termination of probation. The circuit court supported an early termination, noting in a letter to the district attorney Attorney Johns' “extraordinary record of community service” and his “180–degree turnabout” from the behavior that led to the deadly drunk driving accident. Attorney Johns was released from probation two-and-a-half years early, on May 14, 2007.

¶ 16 Attorney Johns began practicing law again. He is currently a full-time solo practitioner.

¶ 17 In December 2010 a third party—revealed at oral argument to be the Milwaukee Journal Sentinel—informed the OLR of Attorney Johns' 2004 conviction. This proceeding followed.

¶ 18 The OLR brought two counts against Attorney Johns. Count One alleged a violation of SCR 20:8.4(b) due to the conduct resulting in Attorney Johns' 2004 conviction. Count Two alleged a violation of SCR 21.15(5), as enforced via SCR 20:8.4(f), because Attorney Johns failed to notify the clerk of the supreme court and the OLR, in writing, of his felony conviction in 2004. The OLR sought a 60–day suspension.

¶ 19 In his answer to the OLR complaint, Attorney Johns denied that his conduct resulting in his 2004 conviction reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects so as to violate SCR 20:8.4(b). Attorney Johns also denied that he had committed misconduct under SCR 21.15(5); he admitted that he did not provide written notice of the felony conviction, but explained that he and his lawyer spoke with the OLR on the date of the conviction regarding the possible impact of the conviction on his law license.

¶ 20 On September 21, 2012, and after a disciplinary hearing, the referee filed a report. The referee concluded that Attorney Johns did not violate SCR 20:8.4(b). The referee wrote that the “commission of a criminal act by a Wisconsin licensed lawyer does not, per se, constitute professional misconduct.” Such a bright line approach, the referee wrote, “would preclude each case from being carefully considered based on the individual facts and circumstances surrounding each criminal offense and how those facts reflected upon the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.” The referee concluded that the OLR had not proven that Attorney Johns' crime reflected adversely on his honesty, trustworthiness, or fitness as a lawyer in other respects. The referee wrote:

The evidence in this case clearly shows that the crime committed by [Attorney Johns] was a once in a lifetime aberration in his otherwise fine behavior. Except for this one specific and tragic event, [Attorney Johns] has led an exemplary personal and professional life. There is no evidence that points to even a hint of any other kind of personal or professional misconduct. There have been no prior reprimands. There is no evidence of any fraud, deceit, dishonesty, cheating, client abuse, or malpractice in any of his behavior. There is no other criminal record.

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