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¶12 The Board of Bar Examiners filed a
memorandum stating that on the basis of the
materials Attorney Washington had submitted
concerning her continuing legal education
credits, it recommended her reinstatement.
The OLR, however, filed a memorandum in
opposition to reinstatement. Essentially,
it asserted that, based on information
discovered in the course of its
reinstatement investigation, Attorney
Washington could not meet her burden for
reinstatement. The specific objections that
the OLR raised will be discussed below in
the context of the referee's report.
¶13 The referee held a hearing on
Attorney Washington's reinstatement petition
on September 20, 2007. Attorney Washington
and six other character witnesses testified
in support of her reinstatement petition.
In addition, the referee received into
evidence a number of additional letters of
support for Attorney Washington. The OLR
did not call any witnesses in opposition,
although it submitted a number of
documentary exhibits, which were received by
stipulation.
¶14 The referee issued a report and
recommendation on December 21, 2007. The
referee's report summarized the testimony
given at the hearing and discussed a number
of issues raised by the OLR's investigation,
which were addressed in exhibits filed by
the OLR and in Attorney Washington's
testimony.
¶15 First, the referee noted that
Attorney Washington had previously been
convicted of two felonies in 1979. Prior to
becoming an attorney, Attorney Washington
had been a social worker and had owned a
social services agency. In connection with
that agency, Attorney Washington was charged
with and convicted of two counts of fraud
involving overbillings to the Medicaid
program. She served 18 months in prison and
an additional couple of years on probation.
Governor Tommy Thompson granted a pardon to
Attorney Washington in 1988 following her
graduation from law school and prior to her
becoming licensed as an attorney in this
state.
¶16 The referee also discussed some
concerns with the winding up of two cases at
the time of Attorney Washington's summary
suspension. In both instances, at the time
of her summary suspension, Attorney
Washington had completed the briefing on
separate postconviction motions for each
client, T.S. and A.A. Attorney Washington
failed to send the required written notice
of her suspension to the two clients, to
opposing counsel and to the relevant
courts. She also failed to acknowledge
these two cases in her affidavit submitted
to the OLR to show compliance with her
winding up requirements under SCR 22.26.
Attorney Washington testified at the hearing
that she did not send written notices of her
suspension or identify the postconviction
motions on her list of pending cases in her
compliance affidavit because she viewed
those representations as having been
concluded when she had finished preparing
and filing the motions and supporting
materials.
¶17 Attorney Washington acknowledged at
the reinstatement hearing that her prior
understanding of the status of those cases
had been incorrect and that, in fact, those
cases had remained pending at the time of
her summary suspension and were subject to
the notice and identification requirements
of SCR 22.26. She conceded that although no
hearing was expected on either of those
motions, there had been no decision issued
in either case at the time of her summary
suspension. Thus, there could have been
further filings needed in the circuit court
or on appeal, and, in any event, there would
have been a need to apprise the clients of
the court's decision when issued and to
discuss how the clients wished to proceed.
¶18 Ultimately, both motions were
denied. After the summary suspension had
been imposed, the circuit court denied the
motion that Attorney Washington had filed on
behalf of T.S. as untimely under the
statutory provisions cited in the motion.
T.S. received a copy of that decision from a
source other than Attorney Washington, and
he subsequently filed a grievance against
her. Attorney Washington entered into a
consensual public reprimand under SCR 22.09
(3) in connection with her representation of
T.S. The stipulated reprimand, which was
approved by a referee on May 2, 2007,
provided that Attorney Washington had
violated SCRs 20:1.1, 20:1.16(d), 22.26(1)
(a) and (b), 22.26(1)(c), 22.26(1)(e)(iii),
and 20:8.4(f).
¶19 As was the case with T.S., the
postconviction motion that Attorney
Washington had filed on behalf of A.A. was
also denied as time-barred and as improperly
brought under Wis. Stat. § 974.06. After
receiving a copy of the circuit court's
decision, A.A. filed a request for
reimbursement from the Wisconsin Fund for
Client Protection (the Fund). Attorney
Washington was unaware of this claim and did
not contest it because she was in a federal
prison camp at the time notice of the claim
by A.A. was mailed to her home. Ultimately,
the Fund granted A.A.'s claim and paid him
the $2,500 he had requested as reimbursement
for the fee he had paid to Attorney
Washington. At the reinstatement hearing,
Attorney Washington stated that she
disagreed with the Fund's payment to A.A.
because she had met with A.A. on multiple
occasions and had in fact done the work he
had requested her to do.
¶20 The referee also discussed the OLR's
contention that Attorney Washington had
misrepresented a number of items in her
responses to the OLR's reinstatement
questionnaire. For example, the OLR claimed
that Attorney Washington had failed to
report income from the sale of a piece of
real estate in October 2006, although she
had shown a gain from a similar real estate
transaction that had occurred in April
2006. At the reinstatement hearing,
Attorney Washington explained that she had
not listed the capital gain from the second
sale because the IRS had immediately seized
the funds as partial payment for back
taxes. The referee noted that the OLR
appeared to be satisfied with this
explanation.
¶21 Another alleged misstatement in her
reinstatement questionnaire responses
involved a list of every civil action in
which Attorney Washington was a party.
Attorney Washington listed only one case, in
which she had been a defendant and in which
a judgment had been issued against her and
then had been satisfied. She failed to
include a substantial number of collection
actions that had been filed on her behalf.
Attorney Washington explained that she had a
longstanding arrangement with a collection
attorney to collect her overdue accounts
receivable. The attorney attempted to
collect the funds, and if unsuccessful,
often filed a collection action in circuit
court. Attorney Washington stated that in
most situations she was not notified by the
attorney when the matter had progressed to
the point of a formal legal action. Because
of this arrangement and her limited
involvement in the collection process,
Attorney Washington stated that she had
failed to consider these collection actions
when responding to the OLR's reinstatement
questionnaire.
¶22 Although the items discussed above
clearly worked against Attorney Washington's
reinstatement petition, the referee
emphasized that Attorney Washington had
exhibited genuine remorse for her conduct at
the reinstatement hearing. The referee
noted that Attorney Washington had readily
conceded that she did not suffer from a lack
of disposable income during the years in
which she had misrepresented her income on
her federal income tax returns. The referee
also stated that while others may have
attempted to excuse her misconduct as a
result of a lack of business acumen or
inadequate clerical support, Attorney
Washington did not attempt to use any such
excuses. In addition to accepting
responsibility for her wrongdoing, Attorney
Washington also convinced the referee that
she has a genuine intention to repay her
outstanding back taxes.
¶23 When asked to explain why she had
failed to report substantial amounts of
income on her 1998-2000 tax returns,
Attorney Washington gave the following
response:
You know, as I go back and think, there's
no
reason why I did what I did, I mean, no
reason that is good enough. It was wrong
what I did, and I can't sit here and justify
what I did.
And it was wrong to——for example, in '99
when I took the personal injury check that
should have been deposited into the business
account and paid expenses, personal
expenses. I didn't have to do that. At
that time I just wanted a new truck. I paid
$3,000 on a new lease, paid out the old
lease, gave my children some money. It's
all outlined in exhibits what I did with the
money.
I mean, I paid $30,000 on old taxes, but
it
wasn't supposed to go that way. And just to
have those few little trinkets, God knows it
hasn't been worth it. What I did was wrong,
was so wrong, and I would never do nothing
like that again.
¶24 In addition to discussing Attorney
Washington's testimony, the referee briefly
summarized the testimony given by six
witnesses who appeared in support of her
reinstatement petition. While those
witnesses included Attorney Washington's ex-
husband and one of her daughters, they also
included a former family court commissioner
before whom Attorney Washington had appeared
on many occasions and an attorney who had
litigated cases against Attorney
Washington. The court commissioner
testified that Attorney Washington had
consistently been prepared for proceedings
in front of her, had provided competent and
zealous representation to clients who were
often difficult and unfamiliar with legal
proceedings, and had never attempted to
mislead the court on behalf of a client.
The opposing attorney and several other
witnesses described the good reputation that
Attorney Washington enjoyed in her community
and stressed that Attorney Washington had
been willing to take on challenging clients
and those without substantial financial
resources.
¶25 In the end, the referee concluded
that Attorney Washington had demonstrated
the necessary moral character to practice
law in this state and had shown that her
resumption of the practice of law would not
be detrimental to the administration of
justice or subversive of the public interest.
¶26 The referee acknowledged that there
were some issues, described above, that
militate against her reinstatement. He
concluded, however, that these problems were
explainable and technical. For example,
Attorney Washington's failure to list the
sales proceeds from a second sale of real
estate was explainable by the fact that
Attorney Washington believed that the
proceeds were not really hers since the IRS
immediately seized them. Similarly, her
failure to list the collection actions as
pending lawsuits on her reinstatement
questionnaire responses, while improper, was
explainable by the fact that under her
normal collection arrangement she was
usually not made aware of the fact that a
collection matter had proceeded to the
litigation stage.
¶27 The referee was somewhat troubled by
Attorney Washington's failure to comply with
the letter of the trust account rules.
Although she did have some records that
showed where personal injury case proceeds
had come into and had gone out of her client
trust account, she did not maintain the
general ledger and client ledgers in the
form required by the rules.
¶28 Similarly, the referee also
expressed concern about the two
postconviction motions for T.S. and A.A.
The referee acknowledged Attorney
Washington's belief that her filing of the
written motions and supporting materials had
completed the representation. While it may
have been likely that no further briefing or
argument would be required from the court
regarding those motions, the referee noted
that Attorney Washington should have listed
those matters on her list of pending cases
submitted to the OLR at the time of her
suspension and should have given the
required notices to her clients, opposing
counsel and the courts since those matters
were not fully completed at the time of her
suspension. The referee did conclude,
however, that Attorney Washington's failure
in this regard was inadvertent.
¶29 Although he acknowledged these
various problems, the referee did not
believe that these issues were serious
enough to prevent Attorney Washington from
resuming the practice of law. Especially
given Attorney Washington's expressions of
genuine remorse, the referee concluded that
Attorney Washington should be given one
final opportunity to practice law in this
state.
¶30 We note at the outset of our
analysis that the primary focus of the
court's regulation of the practice of law in
this state is to ensure the proper
functioning of the state's judicial system
and to protect the public from misconduct by
attorneys. See SCR ch. 21 Preamble. In
the
context of reinstatement proceedings, this
occurs by analyzing whether the attorney
seeking reinstatement has demonstrated that
he/she has the necessary good moral
character to practice law in this state and
that his/her resumption of the practice of
law will not be detrimental to the
administration of justice or subversive of
the public interest. SCR 22.31(1).
Admittedly, these are not quantifiable
calculations. Thus, although this court
makes the ultimate decision on whether to
reinstate the license of any attorney, the
referee's findings are important to the
process because the referee is able to view
the petitioning attorney and other witnesses
in person and to assess the petitioner's
remorse for past misconduct and commitment
to avoiding further misconduct. In the
present case the referee was clearly
convinced that Attorney Washington is
genuinely remorseful for her past misconduct
and will be loathe to commit future
misconduct. This assessment, based upon the
referee's firsthand view of Attorney
Washington's testimony at the reinstatement
hearing, weighs heavily in favor of Attorney
Washington's petition.
¶31 There are, however, some troubling
issues connected with Attorney Washington's
reinstatement petition. First, this is not
the first time that Attorney Washington has
been convicted for criminal conduct. Her
first convictions, however, were in 1979,
now nearly 30 years ago, prior to her
becoming an attorney. Thus, the fact of
these 1979 convictions has limited relevance
to determining her fitness to practice law
in 2008. Moreover, Attorney Washington was
subsequently pardoned for this conduct.
While that fact does not eliminate the 1979
convictions from our consideration, it does
lessen to some degree the amount that those
convictions should weigh against Attorney
Washington in the present reinstatement
proceeding.
¶32 In a similar vein, it is worthwhile
to note that the criminal activity that led
to this suspension of her license to
practice law in Wisconsin did not directly
involve the practice of law. Rather, it
involved a matter in her personal life, her
obligation to report her income accurately
and to pay income taxes. Although criminal
convictions about personal matters can
certainly reflect adversely on a lawyer's
honesty, trustworthiness or fitness as an
attorney and can merit a suspension of the
lawyer's license, see SCR 20:8.4(b),
such
convictions do not always render an
individual permanently unfit to practice
law. See, e.g., In re
Disciplinary
Proceedings Against Meagher, 2004 WI 75,
272
Wis. 2d 247, 681 N.W.2d 145 (reinstatement
granted following six-month suspension due
to criminal conviction for violating federal
wire wagering law); In re Disciplinary
Proceedings Against Penn, 2002 WI 5, 249
Wis. 2d 667, 638 N.W.2d 287 (reinstatement
granted following two-year suspension due to
criminal convictions for six misdemeanor
drug offenses). We think that is the case
here, especially considering Attorney
Washington's lack of prior discipline and
her remorseful acceptance of responsibility
for her misconduct.
¶33 Attorney Washington's failure to
list the October 2006 real estate proceeds
as income and to identify certain collection
actions as pending litigation on her
reinstatement questionnaire, while
undeniably somewhat careless, do not appear
to warrant keeping Attorney Washington from
resuming the practice of law. As to the
real estate proceeds, the referee notes that
the OLR appeared satisfied with Attorney
Washington's explanation that the funds were
never truly in her possession. The OLR has
not appealed from the referee's report to
dispute this statement.
¶34 Similarly, while Attorney Washington
should have been more careful to investigate
and list all of the pending lawsuits in
which she was a party, the ones she failed
to list were collection cases in which she
was a plaintiff. It is difficult to infer a
sinister motive for hiding lawsuits in which
Attorney Washington was seeking to collect
funds owed to her. The referee found that
this failure to list the collection actions
was inadvertent and technical, and due
partly to the nature of the arrangement
between Attorney Washington and the attorney
who handled the collection matters for her.
The OLR also did not challenge this finding
by filing an appeal, and we have no reason
to overturn it.
¶35 As to the A.A. and T.S.
representations, we agree with the referee
that while Attorney Washington's handling of
their postconviction motions and her failure
to notify them of her pending suspension
were unacceptable, those matters are not
sufficient to keep Attorney Washington out
of the practice of law indefinitely. The
referee also notes that the time period
within which Attorney Washington was to wind
up her practice before the summary
suspension was relatively short. While this
does not excuse Attorney Washington's
conduct on the A.A. and T.S. matters, it
does mitigate the severity of her
deficiencies.
¶36 Against these two relatively minor
matters occurring during a period of
personal stress when facing criminal
penalties and a pending suspension of her
license, we weigh a career spanning more
than 17 years prior to her summary
suspension with no previous discipline. In
that balance, the 17 years of practice
without incident provide a greater
indication of Attorney Washington's ability
and moral character to zealously represent
clients in conformance with the Rules of
Professional Conduct.
¶37 We turn to the issue of Attorney
Washington's client trust account records.
First, it should be noted that any
deficiencies in her records relate to the
time when she was still practicing and not
to the period of her suspension.
Additionally, the OLR has not filed a
complaint relating to any trust account
matters. Moreover, while Attorney
Washington did not fully comply with the
requirement of maintaining general and
client ledgers, she did apparently prepare
and maintain some form of documentation to
show the source and disbursement of client
trust funds. For example, when a personal
injury case resolved, Attorney Washington
would prepare a settlement summary that did
show the amount of the total proceeds and
how those proceeds were distributed. The
proceeds were then disbursed immediately.
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