|
ATTORNEY reinstatement
proceeding. Reinstatement granted subject
to conditions.
¶1 PER CURIAM. We review the
recommendation of Referee Christine Harris
Taylor to deny David V. Jennings III's
petition for reinstatement of his license to
practice law in Wisconsin. While finding
that Attorney Jennings' employment history
during the term of his license revocation
has been exemplary and that he has
maintained competence and learning in the
law, the referee concluded, nevertheless,
that Attorney Jennings failed to satisfy by
clear, satisfactory, and convincing evidence
all of the reinstatement standards. See
SCR 22.29(4) and (4m).
|
|
¶2 Referee Taylor questioned Attorney
Jennings' moral character, his attitude and
understanding of the standards imposed on
members of the bar, and whether he proved he
would act in conformity with those
standards. SCR 22.29(4)(f). She determined
he failed to prove he can be safely
recommended to represent others and he
failed to establish his resumption of a
legal practice would not be detrimental to
the administration of justice or subversive
to the public interest. See SCR 22.29(4)
(g); see also SCR 22.31(1). She also
found
that he failed to make full restitution to
those harmed by his misconduct. SCR 22.29
(4m).
¶3 Although we approve and adopt the
referee's findings of fact, which are
undisputed, we do not agree with her legal
conclusions that Attorney Jennings failed to
satisfy all the requirements of SCR 22.29
and we do not adopt her recommendation. We
conclude the record establishes clear,
satisfactory, and convincing evidence that
Attorney Jennings has satisfied all of the
requisites for reinstatement of his license
to practice law in Wisconsin, subject to
conditions relating to his continuing
obligations of restitution. Therefore, we
grant his petition subject to conditions.
We also direct that Attorney Jennings bear
the costs of these reinstatement
proceedings.
I. BACKGROUND
|
|
¶4 The background is lengthy. Attorney
Jennings, who had been admitted to practice
law in Wisconsin in 1975, filed a petition
for voluntary revocation of his law license
in December 1992. Attorney Jennings
acknowledged he could not successfully
defend against allegations he had converted
$550,000 from Milwaukee Cheese Wisconsin,
Inc., and Sheboygan Sausage, Inc., whom he
had been appointed to represent in
bankruptcy proceedings.
¶5 In addition, Attorney Jennings
admitted to embezzling between $85,000 and
$100,000 from his mother's living trust, of
which he was the trustee, during the same
time frame he had been embezzling funds from
Milwaukee Cheese and Sheboygan Sausage.
This court revoked Attorney Jennings' law
license in January 1993. In re
Disciplinary
Proceedings Against Jennings, 172 Wis. 2d
638, 493 N.W.2d 375 (1993) ("Jennings
I").
¶6 Shortly after his thefts were
discovered, Attorney Jennings executed a
mortgage in 1992 on his real estate in
Mequon in favor of both his parents,
ostensibly to secure his existing
indebtedness to them as well as to secure
new money his parents were contemplating
advancing to him to resolve his
embezzlements. However, after learning of
the extent of his thefts, his parents did
not advance him any funds.
¶7 In August 1993 Attorney Jennings
pled guilty and was convicted in federal
court of two counts of embezzlement and two
counts of making false entries in bankruptcy
estates. He was sentenced to 27 months in
prison followed by three years of supervised
release. He was incarcerated from 1993 to
1995. He was ordered to make restitution of
$590,200 in installment payments established
by the probation office. See In re
Disciplinary Proceedings Against Jennings,
2009 WI 26, ¶5, 316 Wis. 2d 6, 762 N.W.2d
648 ("Jennings II").
¶8 In 1997 Attorney Jennings sold his
Mequon property. Attorney Jennings' father
and his late mother's estate received
approximately $93,000 of the sale proceeds.
His former law firm, its malpractice
insurance carrier, and Development
Specialists, Inc. (DSI), who had paid the
bulk of the restitution to Milwaukee Cheese
and Sheboygan Sausage, received as partial
restitution the remaining proceeds amounting
to $152,520. "The mortgage favored Attorney
Jennings' parents over other victims of his
embezzlement and resulted in his parents
receiving 43 cents on each dollar of debt
while his former law firm, its insurance
carrier, and [DSI] received 28 cents on the
dollar." Jennings II, 316 Wis. 2d 6,
¶7.
¶9 In 1998 the federal court revoked
Attorney Jennings' probation due to his
failure to make court-ordered restitution
payments. He spent five days in jail and
his probation term was extended for an
additional 35 months. Id., ¶6. In
October
2001 he was discharged from supervision.
¶10 Attorney Jennings was ordered to pay
$39,760 to the Employee Stock Ownership
Trust of Milwaukee Cheese (ESOT). Id.,
¶10. On June 11, 2002, the federal court
ordered garnishment requiring Attorney
Jennings to continue with payments of $120
per paycheck towards the balance of the
court-ordered restitution. As of October
2010, the total balance of the court-ordered
restitution had been reduced to $3,010.
¶11 After his law license revocation but
before his release from prison, Attorney
Jennings' wife filed a petition to compel
support and maintenance but did not seek a
divorce or legal separation. In May 1993
Attorney Jennings was ordered to pay $1,000
per month in maintenance and $510 per month
in child support. While Attorney Jennings
was incarcerated, substantial arrearages of
approximately $10,000 accrued in his support
and maintenance obligations. Although his
former law firm sought to intervene in the
action, as did Milwaukee Cheese, Sheboygan
Sausage and DSI, they were unsuccessful in
challenging the support petitions.
¶12 In 1997 Attorney Jennings entered
into a stipulation with his wife
establishing a monthly child support
obligation of $460, which was slightly in
excess of the 17 percent required under
Wisconsin law for one child, and repayment
of arrearages at $1,040 per month. Although
he paid support, Attorney Jennings remained
married and continued to live with his wife
at their property in Mequon. "These support
payments served to shield more of Attorney
Jennings' income from his creditors when he
was released from prison since he had to
make payments toward his current support and
maintenance obligations as well as the
arrearages that accrued during his
incarceration." Jennings II, 316 Wis.
2d 6,
¶9. The parties were granted a divorce in
2010.
¶13 From March 1995 through December
1999, Attorney Jennings was employed by the
Heilig-Meyers Furniture Company in its
Milwaukee stores as store manager and credit
manager with fiduciary responsibilities for
daily cash receipts, bank deposits, and
inventory. During this time, he was
licensed by the Wisconsin Commissioner of
Insurance and was responsible for credit
insurance sold in Wisconsin by his
employer. Also, from July 1997 when
Attorney Jennings obtained reinstatement of
his Wisconsin Real Estate Broker's license,
he has been affiliated with three real
estate firms and worked as an independent
broker.
¶14 On October 6, 1999, Attorney
Jennings filed his first reinstatement
petition. After an investigation conducted
by the Board of Attorneys Professional
Responsibility (BAPR), the predecessor to
the Office of Lawyer Regulation (OLR), and
following a public hearing, Attorney
Jennings asked to withdraw his petition.
His request was granted.
¶15 From January 2000 through 2010,
Attorney Jennings was employed by the
Furniture Clearance Center, a division of
the Porter Furniture Company, at various
Racine and Milwaukee locations as store
manager with fiduciary responsibilities for
cash receipts, bank deposits, and inventory
of significant value, as well as
responsibilities for human resource
management.
¶16 In September 2005 Attorney Jennings
entered a no contest plea to operating while
under the influence of alcohol, first
offense, in Ozaukee County. In April 2006
his driver's license was suspended due to
his failure to pay the forfeiture assessed
as a result of the OWI conviction.
Jennings
II, 316 Wis. 2d 6, ¶11. Upon payment of
the
fine, his driver's license was reinstated.
¶17 On November 12, 2007, Attorney
Jennings filed a second reinstatement
petition, which this court denied March 24,
2009. Despite having taken significant
steps with respect to restitution, Attorney
Jennings' former law firm and DSI were still
owed large sums of money. Recognizing
Attorney Jennings' claimed lack of financial
resources, this court observed, "What we
find far more troubling than his failure to
make restitution is his apparent failure not
to have ever tried to determine exactly how
much he owes his former law firm." Id.,
¶25. Because of his failure to face up
completely to his restitution obligations,
this court denied reinstatement. Id.
¶18 On March 15, 2010, Attorney Jennings
filed a third reinstatement petition, which
is now before the court. In response to the
petition, the OLR noted its concern that in
the wake of his misconduct, Attorney
Jennings attempted to protect his personal
interests and those of his family over those
whom he had harmed. The OLR said that
Attorney Jennings had engaged in years of
systematic theft, causing serious injury to
the victims of the theft, to his law firm,
and to the reputation of the legal
profession. Nonetheless, despite its
concerns, the OLR stated it would not
actively oppose reinstatement. The OLR
noted that Attorney Jennings has had an
exemplary work history and appears to have
lived frugally in the years since his
conversion of client funds. The OLR
emphasized Attorney Jennings must carry the
burden to prove that he is entitled to
reinstatement under SCRs 22.29(4), (4m), and
22.31(1).
II. PUBLIC HEARING
¶19 On October 12, 2010, Referee Taylor
held a public hearing on the reinstatement
petition. Notice of the hearing was
published as required by SCR 22.30(3) and
(4). The first witness to testify at the
hearing was Attorney Edward A. Hannan, who
spoke in opposition to reinstatement.
Attorney Hannan asserted that because
Attorney Jennings could not have been
counsel for a debtor in possession without a
law license, the law license was the
instrument of the crime. Attorney Hannan
stated it was only through a third party
audit that the embezzlements came to light.
He noted that after the discovery of the
thefts, Attorney Jennings created a mortgage
on his property in favor of his parents,
which complicated collection proceedings
immensely. Attorney Hannan disputed
Attorney Jennings' contention made in 2008
that he had cooperated in every way possible
with his firm after the discovery of his
thefts. Attorney Hannan testified that for
a long time, Attorney Jennings attempted to
characterize his thefts as loans in an
attempt to avoid penalties and taxes on
them. Attorney Hannan believed Attorney
Jennings' conduct since his revocation
failed to demonstrate an understanding of
the seriousness of his violations and the
gravity of the harm he caused through the
use of a law license.
¶20 Attorney Jennings presented three
witnesses supporting reinstatement.
Attorney Steven M. Epstein testified
Attorney Jennings has acknowledged his
wrongdoing, remorse and responsibility, and
has apologized to his victims. Attorney
Epstein had represented Attorney Jennings in
an attempt to negotiate a settlement with
his former law firm, as well as in a post-
sentencing matter in the criminal case.
Attorney Epstein believes Attorney Jennings
possesses the moral character to practice
law.
¶21 Next, William A. Brandt, Jr.,
President and CEO of DSI, testified Attorney
Jennings had been a fine lawyer in the
bankruptcy arena, had expressed remorse and
sorrow for his misconduct, and has squared
things with his family to the extent
possible. Mr. Brandt testified the cost of
the episode to him and his firm was between
$300,000 and $400,000. Mr. Brandt said he
has put the matter behind him and Attorney
Jennings should be given a chance to be a
productive member of society.
¶22 The third witness, Attorney Emile H.
Banks, Jr., testified Attorney Jennings has
made unsolicited expressions of remorse and
told him he had no means to repay those in
his former law firm who ended up absorbing
the loss.
¶23 Entered as exhibits were letters
from numerous individuals who supported
Attorney Jennings' reinstatement, including
the following:
• Attorney J. Dennis Thornton, who has
known Attorney Jennings since law school,
wrote that Attorney Jennings has paid the
penalty for his errors, is fully
rehabilitated, and possesses the moral
character to be reinstated.
• Attorney William G. Ladewig, who has
known Attorney Jennings since law school,
wrote that Attorney Jennings understands the
wrong he committed, is a man of brilliant
intellect with the moral character to
practice law, and deserves a second
chance.
• Attorney Michael J. Donovan, who has
known Attorney Jennings for many years
before his revocation, wrote that he knows
Attorney Jennings to be trustworthy,
competent and professional, has found
Attorney Jennings to be honest about his
mistakes and that he deserves to be
reinstated.
• Attorney Thomas J. McGinn, who has
known Attorney Jennings since childhood and
has been a recent customer at the furniture
store where Attorney Jennings has been
employed, wrote that Attorney Jennings is
highly ethical in dealings with customers
and has worked diligently to earn the trust
of his employer.
• H.R. Waters, the president of the
former Porters of Racine, which owned the
Furniture Clearance Center where Attorney
Jennings had until recently worked as a
manager, wrote that Attorney Jennings was
open about his law license revocation.
Waters stated Attorney Jennings worked as
manager at every one of the store locations,
was in a position of responsibility, handled
significant amounts of cash and inventory in
his position as manager, demonstrated very
high moral character in dealing with
customers and employees, and was well liked
and highly regarded.
• Roger Davison, who works with a
title insurance company, has known Attorney
Jennings since 1993 and has worked with him
with regard to real estate transactions and
wrote that Attorney Jennings is very
knowledgeable and deserving of the privilege
of practicing law again.
• Sara Johnsen, a co-worker of
Attorney Jennings at the furniture store
since 2001, wrote that Attorney Jennings was
trustworthy, responsible, highly
professional, and honest about his past
mistakes.
• Deborah Graupner, an interior
designer who has done business with Attorney
Jennings over the years, wrote that she
believes he possesses high integrity,
trustworthiness, and professionalism as
would be expected of an attorney.
¶24 Testifying on his own behalf,
Attorney Jennings stated that other than his
thefts discovered in 1992, there has never
before or after been an allegation of
misconduct in his professional life. He
disagreed that granting the mortgage to
benefit his parents was wrong and said that
if the creditors believed it was wrong, they
could have challenged it in legal
proceedings. Attorney Jennings testified
his child support payments had been in
accordance with the 17 percent guidelines
for one child.
¶25 Attorney Jennings recounted his
success as a manager of a furniture business
and said he was entrusted with collecting
money, properly accounting for it, and
paying it into various bank accounts. He
admitted that in 2005 he received a traffic
citation for operating while intoxicated,
noting his failure to pay his fine promptly
was unintentional. He further said he has
withdrawn all his objections to the
Wisconsin Department of Revenue tax
assessments. He entered into a compromise
and is making installment payments.
III. REFEREE'S REPORT AND
RECOMMENDATION
Referee Taylor filed her findings,
conclusions, and recommendation on December
8, 2010. Referee Taylor observed that
Attorney Jennings' witnesses described him
as bright, hardworking, and capable of
providing high quality legal services, as
well as apologetic and remorseful for his
misconduct. She noted the several letters
supporting his reinstatement. In addition,
the referee considered Attorney Jennings'
employment history and found that he has, by
all accounts, excelled at his position as a
manager of a furniture store. She
determined Attorney Jennings has proven many
of the requirements for reinstatement
pursuant to SCRs 22.29(4) and 22.31(1). She
noted he has fully complied with the terms
of the revocation order. The referee
considered that Attorney Jennings has made
regular payments toward costs imposed in his
previous reinstatement proceedings. In
addition, the referee found Attorney
Jennings has maintained competence and
learning in the law through his attendance
at educational activities as confirmed by
the Board of Bar Examiners. See SCR 22.29(4)
(d).
¶26 Also, the referee observed, while
his previous misconduct has been well-
documented, neither the OLR nor any other
witness presented any evidence to indicate
that Attorney Jennings' conduct has not been
exemplary or above reproach since the time
of the 2008 reinstatement petition. See
SCR
22.29(4)(e). Referee Taylor said no
evidence had been presented to cast doubt on
Attorney Jennings' present qualifications to
practice law. She noted that if reinstated,
Attorney Jennings intended to use his law
license in business or to obtain employment
in a supervised law firm. See SCR 22.29
(4)
(j). She observed that by all accounts, he
has maintained regular employment and has
excelled in his management position at the
furniture store. See SCR 22.29(4)(k).
She
also found he has complied with the
requirements of SCR 22.26 regarding the
activities of a person whose license is
revoked. See SCR 22.29(4)(h).
¶27 However, the referee determined
Attorney Jennings did not prove a proper
understanding of and attitude toward the
standards imposed on members of the bar and
has failed to prove he will act in
conformity with those standards. See SCR
22.29(4)(f). She concluded his testimony,
in which he maintained his parents had
legitimate claims secured by the 1992
mortgage on his property, evinced an
unacceptable attitude. She observed, "[a]
lthough Jennings does not have the ability
to change the course of his past conduct,
his attitude towards his past conduct
remains unapologetic and without remorse."
¶28 Similarly, Referee Taylor was
unconvinced Attorney Jennings met his burden
to show he can be safely 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. See SCR 22.29(4)(g).
Acknowledging that his witnesses testified
to his past expressions of remorse, the
referee nevertheless determined: "Jennings'
testimony lacks any feeling of remorse or
apology to the victims as a result of his
misconduct." She said that while the record
demonstrates Attorney Jennings' exemplary
work history, she found the extent and
gravity of his misconduct, and the fact his
misconduct was directly related to his
representation of his clients, "makes him
less than trustworthy." Further, noting
that Attorney Jennings continued to live in
the same residence with his former wife
while paying support and maintenance,
Referee Taylor found that the stipulated
payments to his wife served to divert funds
back to himself and his family, at the
expense of his clients, his former law firm,
and the public. Referee Taylor concluded
the support payments, while seemingly an
honorable action toward his family, called
into question whether he can be safely
recommended to the legal profession, the
courts, and the public as a person fit to be
consulted by others.
¶29 Additionally, the referee noted that
Attorney Jennings had not made full
restitution to all persons harmed by his
conduct. See SCR 22.29(4m). She found
he
had reimbursed his former firm $152,520 and
currently still owed $397,680 plus
interest. The referee noted one former law
partner (Hugh R. Braun) acknowledged that
Attorney Jennings would likely never be able
to pay the firm back and indicated that all
or most of the debt would be forgiven and
the judgment against Attorney Jennings would
be released. The referee also noted that
Attorney Jennings' sister, who is the
trustee of his mother's estate, indicated
she no longer seeks restitution of the
remaining sums owed.
¶30 Referee Taylor considered the
gravity of Attorney Jennings' professional
misconduct that led to his revocation. The
referee found Attorney Jennings has yet to
explain his failure to pay court-ordered
restitution from October 1997 to March 1998,
resulting in an extended probation of three
years. The referee recommended denying
reinstatement and imposing costs, along with
his continuing restitution obligations.
IV. APPEAL
¶31 Attorney Jennings challenges the
referee's determination that he failed to
demonstrate by clear, satisfactory, and
convincing evidence he satisfied the
requirements for reinstatement of his
license to practice law. He argues that the
referee's determinations that he failed to
meet the requisites of SCR 22.29(4)(f), (g),
and (4m) are legal conclusions to be
reviewed de novo. See In re
Disciplinary
Proceedings Against Eisenberg, 2007 WI 7,
¶15, 298 Wis. 2d 578, 726 N.W.2d 634.
¶32 Attorney Jennings contends he has
continuously acknowledged his conversion of
client and trust funds was deeply flawed,
wrong, and reprehensible. He says he has
never lacked contrition, has always been
forthcoming with information, and there has
been no failure to communicate or
cooperate. Attorney Jennings argues his
three witnesses spoke to his remorse and
moral character, and supported his
reinstatement. Attorney Jennings also
relies on the numerous letters from
individuals acquainted with him personally,
which were produced as exhibits at the
hearing.
¶33 Attorney Jennings argues: (1) the
failure to admit the wrongfulness of the
1992 mortgage to his parents should not
preclude reinstatement; (2) the referee
ignored the 1997 settlement with various
claimants providing for the sale of his real
property netting restitution of $250,000;
(3) his failure to admit the wrongfulness of
payments to family court should not preclude
reinstatement; (4) other attorneys who
engaged in similar misconduct have been
reinstated; (5) the entire record shows his
remorse for his "reprehensible conduct" of
converting client trust funds during the
years of 1988 through July 1992; and (6)
because he has paid substantial restitution
and continues to pay regularly, his
inability to make full restitution should
not preclude reinstatement.
¶34 Attorney Jennings says that after
making regular payments, his current
indebtedness to ESOT has been reduced to
$3,010. Attorney Jennings acknowledges he
has not made any direct payments to his
former law firm since 1997, but that he has
made proposals of settlement. Also, he says
he has voluntarily named his former law firm
as the beneficiary on a life insurance
policy and continues to pay premiums, but
lacks the means to repay the firm. He notes
his sister and certain members of his former
law firm are willing to forgive all or most
of his debt because they know he may never
be able to pay them back.
¶35 Attorney Jennings asserts that other
lawyers have been reinstated without
completing restitution, citing In re
Disciplinary Proceedings Against Gral,
2010
WI 14, 323 Wis. 2d 280, 779 N.W.2d 168; In
re Disciplinary Proceedings Against
Lieuallen, 2007 WI 119, 305 Wis. 2d 29,
739
N.W.2d 486; In re Disciplinary Proceedings
Against Gilbert, 2002 WI 102, 255 Wis. 2d
311, 647 N.W.2d 845; and In re
Disciplinary
Proceedings Against Straub, 2002 WI 130,
258
Wis. 2d 58, 655 N.W.2d 111.
¶36 The OLR filed a response to Attorney
Jennings' appellate arguments. Although the
OLR initially did not oppose the petition
for reinstatement, the OLR now argues the
referee properly determined Attorney
Jennings failed to carry his burden. The
OLR says the referee was entitled to
consider the gravity of the misconduct and
find Attorney Jennings' attitude remains
unapologetic and without remorse. The OLR
claims the record supports the referee's
credibility assessment based on her
observations of Attorney Jennings' demeanor
at the reinstatement hearing. The OLR
contends the referee's weight and
credibility assessments are entitled to
appellate court deference.
¶37 Also, the OLR argues, the cases on
which Attorney Jennings relies should be
distinguished. For example, in the case of
Taylor, 296 Wis. 2d 66, the referee
found no
evidence of dishonesty or poor character
since the original misconduct. In
George,
329 Wis. 2d 333, this court concluded the
proper attitude and understanding of ethical
standards were shown. The OLR requests the
court approve the referee's recommendation
and deny reinstatement.
V. DISCUSSION
¶38 We begin by observing that Attorney
Jennings' professional misconduct was, as
described in his own words, reprehensible.
He has been professionally disciplined and
criminally prosecuted for that misconduct.
The referee was justifiably concerned with
the gravity of Attorney Jennings' offenses.
While concluding he satisfied several
requisites for reinstatement, she determined
that questions remained regarding Attorney
Jennings' character, his attitude, and his
understanding of ethical standards,
particularly in light of an inadequate
showing of remorse and incomplete
restitution.
|
|
¶39 In reviewing findings of fact, we
defer to the referee's assessment of the
credibility of witnesses. See In re
Disciplinary Proceedings Against Polich,
2005 WI 36, ¶25, 279 Wis. 2d 266, 694 N.W.2d
367. We do not overturn the referee's fact
findings unless clearly erroneous. However,
we review conclusions of law de novo.
Id.,
¶4. The referee's determination that
Attorney Jennings' proofs failed to satisfy
SCR 22.29(4)(f), (g), and (4m) are legal
conclusions to be reviewed de novo, and we
will review them as such. See
Eisenberg,
298 Wis.2d 578, ¶15.
¶40 Turning to Attorney Jennings'
arguments, we conclude a number of them are
not entirely persuasive. Contrary to his
assertion, the wrongfulness of the 1992
mortgage to his parents is no longer
debatable, having been determined in
Jennings II. 316 Wis. 2d 6, ¶7.
Further,
this court has already found that his
payments to family court served to shield
his income from creditors. See id.,
¶9.
Also, contrary to his contention, the
referee did not ignore the 1997 settlement
with various claimants resulting from the
sale of his real property, but took this
partial restitution payment into account.
¶41 Despite the weaknesses of some of
Attorney Jennings' contentions, we
ultimately agree with his contention that
his reinstatement petition should be
granted. Upon review of undisputed facts,
it becomes apparent that Attorney Jennings
has made significant progress in satisfying
reinstatement requirements. In addition to
continuing monthly restitution payments to
ESOT and maintaining competence in the law,
he has demonstrated he has earned the trust
and respect of those with whom he has
worked. Over the past 15 years, Attorney
Jennings has successfully held positions of
trust and responsibility.
¶42 Several individuals supporting
Attorney Jennings' reinstatement petition
are familiar with his employment history
which, as found by the referee, is
exemplary. The record establishes Attorney
Jennings has been consistently employed for
more than 15 years as a manager with
considerable responsibilities. There is no
dispute he has successfully performed his
duties, which included fiduciary
responsibilities for cash receipts, bank
deposits, and inventory of significant
value, as well as responsibilities of human
resource management. By all accounts, he
has performed these duties admirably.
¶43 Also, it is undisputed Attorney
Jennings' reinstatement petition has the
support of numerous individuals. Letters
written on his behalf state that Attorney
Jennings has paid the penalty for his
misconduct; he is competent and his
subsequent actions have been highly ethical;
he demonstrates high integrity and
trustworthiness in his work; he is honest
about his mistakes and cares for the people
who work for him; he has rebuilt his life
and has earned the privilege to practice law
again; he is competent, capable, and would
be an asset to the legal profession. We
believe the record supports the conclusion
Attorney Jennings recognizes the gravity of
his misconduct and, over the course of
nearly 19 years since his voluntary
revocation, has learned from his
transgressions.
¶44 We are, however, mindful of the
significant concerns expressed by the
referee and the OLR with respect to a lack
of expressions of remorse and empathy at the
public hearing. In addition, the referee
was justifiably concerned with Attorney
Jennings' continued obligations to members
of his former law firm, the insurance
carrier, and DSI, on which there has been no
progress since 1997. We also consider the
concerns expressed in Attorney Hannan's
letter and his testimony opposing
reinstatement. Because the referee's fact
findings are not challenged as clearly
erroneous, we affirm and adopt them on
appeal. Thus, we accept as fact that
Attorney Jennings' testimony at the public
reinstatement hearing lacked a showing of
remorse to the victims of his embezzlement.
Although the gravity of the misconduct, a
lack of expressions of remorse, and an
absence of full restitution does not
preclude reinstatement in all cases, these
considerations are pertinent to the issues
presented.
¶45 Further, we note Attorney Jennings'
appellate arguments do not appear to
recognize certain distinguishing features of
the cases he cites in which reinstatement
has been granted despite a failure to
complete restitution. In the Gilbert
case,
for instance, reinstatement was conditioned
on continuing restitution. Gilbert, 255
Wis. 2d 311, ¶13. Also, in the Gral
case,
Attorney Gral stated "he was working every
day on making the [restitution] payment and
that he would honor the payment just as he
had done with his past obligations."
Gral,
323 Wis. 2d 280, ¶13. Attorney Gral's
commitment to restitution was persuasive
evidence that he had accepted full
responsibility for his criminal activities.
Id., ¶25. See also Taylor, 296
Wis. 2d 66,
¶14 (reinstatement subject to conditions
including monthly restitution payments).
¶46 We take into account Attorney
Jennings' explanation that he lacks the
financial resources to make additional
restitution payments at this time. No
evidence has been submitted to dispute his
claimed lack of financial resources.
Nonetheless, we conclude that Attorney
Jennings' current lack of resources should
not relieve him of a continuing obligation
to make payments toward the restitution of
the stolen sums.
¶47 Accordingly, as ordered in other
reinstatement cases involving incomplete
restitution, Attorney Jennings shall be
provided the opportunity to demonstrate his
continued acceptance of full responsibility
for his past criminal activities. To be
entitled to reinstatement of his license to
practice law in Wisconsin, he shall be
required to continue to pay his current
restitution obligations to ESOT, as well as
address his restitution obligations to his
former law firm, the malpractice insurer,
and DSI, as follows:
1. Attorney Jennings shall continue to
comply with his current restitution payments
to the ESOT until such time as these
obligations are paid in full or modified;
2. Within 30 days of the date of his
reinstatement and annually thereafter,
Attorney Jennings shall disclose to the OLR
his income, assets, and net worth, including
all W-2s, tax returns, financial statements,
and other documentation, until such time as
he has settled or satisfied all his
restitution obligations to ESOT, members of
his former law firm, its insurance carrier,
and DSI;
3. Within 60 days of the date of his
reinstatement, and periodically thereafter,
Attorney Jennings shall meet with
appropriate representatives of the OLR to
discuss, negotiate in good faith, and reach
a plan for repayment or settlement of the
$397,680, plus interest, to members of his
former law firm, the malpractice insurer,
and DSI, when his court-ordered restitution
to ESOT is completed;
4. Attorney Jennings shall maintain the
insurance policy now in effect on his life,
naming the members of his former law firm as
beneficiaries, until his obligations are
paid in full or settled, and provide the OLR
proof of compliance with this condition
within 30 days;
5. Attorney Jennings shall cooperate
fully with any review of this matter that
may be conducted by any entity appointed by
the court to undertake such review;
6. Within 60 days of the date of this
order, Attorney Jennings shall meet with the
appropriate representative of the OLR to
review, discuss, and arrange for the terms
of payment of costs of this and his earlier
disciplinary proceedings.
¶48 We recognize that Attorney Jennings'
former law firm, the malpractice insurer,
and DSI, as well as his own family, may
never be fully repaid. Nonetheless, we
determine that a continuing effort toward
restitution, to the extent he is financially
able, is necessary to demonstrate Attorney
Jennings' attitude and understanding of the
ethical standards required of members of the
bar. We conclude that compliance with the
above conditions, together with the evidence
of record, fulfill the demands of SCR 22.29
(4) and (4m). We grant Attorney Jennings'
petition for reinstatement and award costs
to the OLR in the sum of $5,465.39.
¶49 IT IS ORDERED that the petition for
reinstatement is granted and the license of
David V. Jennings III to practice law in
Wisconsin is conditionally reinstated
effective the date of this order.
¶50 IT IS FURTHER ORDERED that the
conditions set forth in this order,
including compliance with the current
Continuing Legal Education requirements, are
imposed on the license of David V. Jennings
III to practice law in Wisconsin. If he
fails to comply with the conditions required
by this order and absent a showing to this
court of his inability to do so, the license
of David V. Jennings III to practice law in
Wisconsin shall be suspended until further
order of the court.
¶51 DAVID T. PROSSER, J., dissents.
|