¶3 Following extensive litigation, amended complaints, and an appeal, this court accepted the referee's conclusion that Attorney Parks had committed eight of 14 alleged counts of misconduct. See In re Disciplinary Proceedings Against Parks, 2018 WI 110, 384 Wis. 2d 635, 920 N.W.2d 505. We suspended Attorney Parks' law license for 14 months for:

¶4 In January 2020, Attorney Parks filed a petition for reinstatement. The OLR opposed Attorney Parks' petition for three primary reasons: (1) the OLR had learned of an action involving Attorney Parks' insurance license; (2) the OLR had concerns about aspects of Attorney Parks' 2018 tax returns; and (3) the OLR argued that Attorney Parks' failure to reimburse his former firm and two clients reflected adversely on his request for reinstatement.

¶7 On 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. We benefit from the referee's findings and conclusions, particularly when, as here, the referee has provided us with such a thoughtful and well- structured report. However, we are not bound by the referee's recommendation or by the OLR's restitution policy. In re Disciplinary Proceedings Against Nussburger, 2009 WI 103, 321 Wis. 2d 576, 775 N.W.2d 525; see also In re Disciplinary Proceedings Against Langer, 213 Wis. 2d 125, 569 N.W.2d 465 (1997). The ultimate determination of who may practice law in Wisconsin remains with this court. Here, we accept the referee's findings, but we reach a different conclusion of law with respect to SCRs 22.29(4)(e),(4m) and 22.31(1)(a).

¶8 The OLR did not dispute and the referee found that Attorney Parks satisfied a number of the requirements for reinstatement. He demonstrated that he desires to have his license reinstated, SCR 22.29(4)(a); that he has not practiced law during the period of his suspension, SCR 22.29(4)(b); that he has complied fully with the terms of the order of suspension and will continue to comply with them until his license is reinstated, SCR 22.29(4)(c); and that he has maintained competence and learning in the law, SCR 22.29(4)(d). The referee found that Attorney Parks fully complied with the requirements set forth in SCR 22.26 as required by SCR 22.29(4)(h); explained how he would use his license if reinstated, SCR 22.29(4)(j); and outlined his activities during his suspension, SCR 22.29(4)(k). We accept the referee's findings and conclusions with respect to these criteria.

¶9 The more challenging questions involved whether Attorney Parks has the moral character to practice law in Wisconsin, as required by SCR 22.31(1)(a), and whether he met his burden with respect to SCR 22.29(4)(e) (requiring that the petitioner's conduct since the suspension has been exemplary and above reproach); SCR 22.29(4)(f) (requiring that 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); SCR 22.29(4) (g) (requiring that 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). Another concern pertains to Attorney Parks' obligation to make restitution to or settle all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin Lawyers' Fund for Client Protection for all payments made from that fund, or, if not his explanation of the failure or inability to do so. SCR 22.29(4m). Failure to satisfy this criterion bears, in turn, on whether a petitioner has the moral character to practice law in Wisconsin. SCR 22.31(1)(a).

¶10 The referee's findings with respect to the insurance license matter derive from a partial stipulation executed by the parties as well as evidence from the reinstatement hearing. In 1998, Attorney Parks was licensed by the Office of the Commissioner of Insurance (OCI) as a Wisconsin resident insurance intermediary, which authorized him to sell life, fixed and variable annuities, accident and health insurance. To hold this particular license, Wisconsin residents must maintain active Financial Industry Regulatory Authority (FINRA) Series 6 or 7 Registration (FINRA Registration) and provide OCI with a "Central Registration Depository" number.

¶11 The parties stipulated that Attorney Parks was duly registered through April 2014. However, from April 2014 to January 24, 2019, Attorney Parks did not have the appropriate FINRA registration. Yet, in his 2017 insurance license renewal application, Attorney Parks indicated that he was eligible to continue to hold the Variable Life/Variable Annuity lines of authority and he failed to timely notify the OCI that he was ineligible to hold the Variable Life/Variable Annuity lines of authority due to the termination of his FINRA registration. He also failed to disclose to the OCI the lawyer disciplinary proceeding that was then pending against him, as well as his business address. Ultimately, Attorney Parks and the OCI resolved the insurance matter by stipulation. Attorney Parks consented to the revocation of his insurance license, the imposition of a forfeiture, and the condition that he not seek relicensure in the future.

¶12 At the reinstatement hearing Attorney Parks was questioned at length about this issue. Attorney Parks explained that when he obtained and later renewed his insurance license he sought guidance from an insurance professional, an individual who was a financial advisor and a regional vice- president for Primerica, for whom Attorney Parks worked at the time. Attorney Parks explained that in 2014, Primerica informed its agents that they considered estate planning to present a possible conflict of interest with certain types of insurance; anyone who was doing both should give one up. So, Attorney Parks opted to resign from Primerica in April 2014 in order to continue his estate planning practice.

¶13 Attorney Parks explained that as he was no longer associated with an insurance company he knew he could no longer sell insurance or act as an insurance agent and he ceased doing so. It was not disputed that Attorney Parks has not engaged in the insurance business since October 2012. Attorney Parks testified that neither he nor the professional he consulted realized that he should have reported the termination of his appointment with Primerica to the OCI.

¶14 In 2017, Attorney Parks decided to renew his insurance license in order to maintain a hard-earned credential. He stated that he reviewed the renewal application with the individual mentioned above, and testified that neither of them interpreted a question on the license application as requiring him to report the then-pending OLR action. He testified that neither of them realized that because an insurance license in Wisconsin has a variable annuity component that remains intact even with a loss of FINRA Registration, Attorney Parks was impliedly asserting in his renewal application that he was still eligible to sell variable life and variable annuity products. The referee was satisfied with Attorney Parks' explanation and found that these violations were not intentional.

¶15 As the referee observed, the OCI matter is relevant not for the violations per se, but rather as they inform whether Attorney Parks "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," and whether he "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." SCR 22.29(4)(f) and (g). The referee noted that this incident occurred before Attorney Parks' law license suspension, and that Attorney Parks admitted that he bore the ultimate responsibility for his actions. The referee found Attorney Parks' testimony credible and opined that by obtaining and relying on professional advice, Attorney Parks exhibited appropriate judgment and sought to act properly. The referee commented that his errors were "greatly mitigated by his genuine attempts to get it right."

¶16 The referee then considered Attorney Parks' failure to fully disclose to the OCI the scope of his attorney misconduct. Specifically, in his answer to the OCI's complaint, Attorney Parks admitted having been found to have committed eight counts of professional misconduct. However, he denied the remaining characterizations in the paragraph, i.e. that he was found to have committed eight counts of misconduct "including acts of dishonesty, fraud, deceit or misrepresentation against a client."

¶17 The referee acknowledged the OLR's legitimate concern that "this appears to be an attempt to minimize his culpability, which would cast doubt on his truthfulness, his understanding of his responsibilities, and his fitness to be consulted." Attorney Parks took the position that that not all of the eight counts of professional misconduct involved violations of SCR 20:8.4(c) (i.e. acts of dishonesty, fraud, deceit or misrepresentation against a client). So, he reasoned that the phrase "eight counts of professional misconduct as an attorney, including acts of dishonesty, fraud, deceit or misrepresentation against a client" was "technically" inaccurate. The referee deemed Attorney Parks' explanation credible and concluded that he satisfied SCRs 22.29(4)(f) and (g) and that the OCI matter should not preclude his reinstatement to the practice of law. We accept the referee's findings and conclusions with respect to this matter.

¶18 Shortly before the reinstatement hearing, the OLR expressed concern about a deduction that Attorney Parks claimed on his 2018 tax return. At the hearing, Attorney Parks' tax preparer testified and opined that the deduction was appropriate, and noted that a different tax preparer had claimed the same deduction the previous year.

¶20 We turn to the issue that causes us to reject this reinstatement petition. The OLR suggests that Attorney Parks' failure to reimburse his former law firm for legal fees he diverted from it, or to reimburse certain clients for an improperly solicited "gift," should preclude his reinstatement. To be clear, the OLR did not seek restitution in the underlying disciplinary proceeding, citing its restitution policy. The underlying disciplinary referee did not recommend restitution and we did not order it. Parks, 2018 WI 110, ¶1.

¶21 However, the OLR now contends that Attorney Parks' failure to voluntarily reimburse the firm and these clients reflects "a degree of potential callousness or lack of responsibility for his conduct." The OLR suggests this omission reflects adversely on Attorney Parks' conduct since his suspension, SCR 22.29(4)(e), and may not wholly satisfy SCR 22.29(4m). The OLR asserted that "at the least that Parks should satisfactorily explain to the referee at the reinstatement proceeding why despite a finding of dishonesty by the Court, Parks has apparently made no effort to pay or repay the firm" or the others affected by his misconduct.

¶22 The referee analyzed this issue carefully and concluded that Attorney Parks' failure to reimburse the firm and his former clients should not be the basis for denying his petition for reinstatement. We disagree.

¶23 In the underlying disciplinary proceeding, Attorney Parks admitted that he performed legal work "on the side" for over 30 clients and that he collected at least $13,875 in fees that he deposited into his personal account. Although Attorney Parks insisted that he had discretion over the cases he accepted and that he was authorized to reduce fees, for example to facilitate a settlement that might otherwise fail, the firm's partners categorically denied that the firm had ever authorized him to work "on the side" or to unilaterally reduce legal fees. The underlying record was replete with mutual accusations of lying; many of the disciplinary issues turned on credibility assessments. At the end of the day, neither the referee nor this court was persuaded by Attorney Parks' explanations. We determined that he made unauthorized fee reductions, and/or accepted services that benefitted him personally in exchange for a reduction of legal fees, at the firm's expense. He was disciplined, accordingly.

¶24 Attorney Parks was also accused of misconduct in his dealings with C.D. and some of her relatives. C.D. was, at various times, Attorney Parks' client, tenant, and personal friend from the early 1990s until her death in 2013. She rented a home from Attorney Parks and she lent him money. He served as her power of attorney, took her to medical appointments, and visited her. In her will she partially forgave the loan she had made him and she bequeathed to him a number of personal household items. Attorney Parks was also friends with C.D's daughter, L.E., and L.E.'s husband, T.E. Attorney Parks represented T.E. in a personal injury case, wrote two wills for the couple, and was the best man at their wedding.

¶25 The reimbursement dispute at issue here stems from T.E.'s personal injury case. The firm's standard contingency fee agreement provided that the firm would receive 33 percent of any recovery for attorney fees. Around the time of settlement, Attorney Parks unilaterally reduced the attorney fees from 33 percent to 25 percent. The firm received $12,000 less than it should have for the legal representation of T.E.

¶26 During this representation Attorney Parks repeatedly mentioned to T.E. and L.E. that clients sometimes gave him a "bonus." When the couple arrived to collect their settlement money, Attorney Parks asked about "his $5,000 bonus." L.E. wrote a $5,000 check and handed it to Attorney Parks. He asked that she write "gift" on the memo line, which she did.

¶27 Although Attorney Parks has maintained this was a gift, neither this court nor the referee in the underlying disciplinary case was persuaded. The referee noted that the couple had little money at this time, and found that they felt compelled to give Attorney Parks the requested bonus. The referee found that the "gift" was not the couple's idea; they felt they needed to pay it to receive their settlement. We agreed and we ruled that by this conduct, Attorney Parks violated SCR 20:8.4(c) and SCR 20:8.4(f).

¶28 At his reinstatement hearing, Attorney Parks was asked why he never repaid his former law firm the funds that he improperly diverted from it. Attorney Parks responded that he not been ordered to do so, he'd had no communication with the firm since the underlying disciplinary hearing, and the firm had not asked for reimbursement. Similarly, when asked why he had not repaid L.E. the $5,000 "gift" that was the basis of her grievance against him, Attorney Parks responded that she had never asked for it to be repaid.

¶30 We disagree. The requirement to make restitution in SCR 22.29(4m) may include amounts due to those harmed by the lawyer's misconduct, even if restitution is not expressly ordered in the original disciplinary proceeding. In re Disciplinary Proceedings Against Woodard, 2012 WI 41, 340 Wis. 2d 248, 812 N.W.2d 511. On occasion we have ordered, as a condition of practice, that a lawyer make restitution payments after reinstatement from a license suspension, even when restitution was not ordered in the underlying disciplinary proceeding. Id. In Woodward, for example, shortly before the reinstatement hearing, the lawyer sent a former client a check for $500 as "a full and final settlement" of an acknowledged $1,500 debt. The client objected. We reinstated the lawyer's law license but ordered the lawyer to reimburse the client in full, as a condition of continued practice. Id.

¶31 In this case, even if we were persuaded that Attorney Parks had satisfied all reinstatement criteria, imposing a restitution order as a condition of practice is not a viable option; the precise amount of the obligations are difficult to ascertain. As the OLR explained at the time, "witness accounts differed and credibility uncertainties rendered the amounts at issue not reasonably ascertainable." In any event, we deem Attorney Parks' explanation for his failure to make any effort to make restitution wholly inadequate to satisfy his burden to demonstrate compliance with SCR 22.29(4)(e) and (4m). This omission also causes us to conclude that he has not demonstrated that he possesses the requisite moral character to practice law in this state. See SCR 22.31(a).

¶32 We are under no obligation to reinstate an attorney who has made no effort at all to make restitution to or settle all claims of persons injured or harmed by his misconduct. Lathrop v. Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) (observing that the practice of law is not a right but a privilege); In re Disciplinary Proceedings Against Hyndman, 2002 WI 6, ¶4, 249 Wis. 2d 650, 638 N.W.2d 293 (stating that a petitioner seeking reinstatement does not enjoy a presumption of rehabilitation upon the expiration of a specified term of suspension). Upon a showing that Attorney Parks has sought in good faith to address the requirements of SCR 22.29(4m), we will be more favorably disposed to a future reinstatement petition. Although a petitioner typically must wait nine months before seeking reinstatement after denial of a reinstatement petition, in this case we exercise our discretion to reduce that time. SCR 22.33(4); In re Disciplinary Proceedings Against Carroll, 2004 WI 19, 269 Wis. 2d 172, 675 N.W.2d 792. Attorney Parks may seek reinstatement when he can demonstrate that he has addressed SCR 22.29(4m).

¶33 Finally, it is our general practice to assess the full costs of a reinstatement proceeding against the petitioning attorney. See SCR 22.24(1m). The OLR's statement of costs indicates that the costs of this proceeding are $6,370.43 as of July 16, 2020. We find no basis to depart from our general policy in this matter and we agree with the referee's recommendation that we impose the full costs of the reinstatement proceeding on Attorney Parks.

¶34 IT IS ORDERED that the petition for reinstatement of Daniel Parks is denied.

¶35 IT IS FURTHER ORDERED that the requirement in SCR 22.33(4) requiring a nine-month waiting period before filing a subsequent reinstatement petition is waived. Daniel Parks may seek reinstatement upon a showing that he has addressed SCR 22.29(4m).

¶36 IT IS FURTHER ORDERED that within 60 days of the date of this order, Daniel Parks shall pay to the Office of Lawyer Regulation the costs of this proceeding, which are $6,370.43 as of July 16, 2020, or enter into a payment agreement plan with the Office of Lawyer Regulation for the full payment of costs over a period of time.

¶37 BRIAN HAGEDORN, J. (dissenting). I would grant Attorney Parks' petition for reinstatement.

¶38 Accordingly, I respectfully dissent.