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ATTORNEY Reinstatement proceeding.
Reinstatement granted.
¶1 PER CURIAM. We review the report
and recommendation of Referee James J.
Winiarski recommending that James M.
Schoenecker's license to practice law in
Wisconsin be reinstated. After careful
review of the matter, we agree that Attorney
Schoenecker's license should be reinstated
with certain conditions recommended by the
referee. We further agree with the referee
that, consistent with our general practice,
Attorney Schoenecker should be required to
pay the full costs of this reinstatement
proceeding, which are $14,754.78 as of
October 7, 2019.
¶2 Attorney Schoenecker was admitted to
practice law in Wisconsin in 2004. He is a
graduate of Boston College and Columbia
University Law School. He practiced briefly
in New York, then practiced at Quarles and
Brady in Milwaukee for a time, and finally
practiced at the Clair Law Offices, a small
law firm in Delevan.
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¶3 In 2011, Attorney Schoenecker's
license was suspended for three years.
See
In re Disciplinary Proceedings Against
Schoenecker (Schoenecker I), 2011 WI
76, 336
Wis. 2d 253, 804 N.W.2d 686. Much of the
misconduct in that case arose out of
Attorney Schoenecker's personal and
professional relationship with his former
fiancée. In late 2007, Attorney Schoenecker
and his fiancée opened a joint checking
account and the fiancée obtained a home
equity line of credit and loaned Attorney
Schoenecker $48,500. Attorney Schoenecker
executed a promissory note whereby he
promised to repay the loan with interest.
Two days later, the fiancée learned Attorney
Schoenecker had made cash withdrawals from
her checking account at a casino, resulting
in a $1,500 negative balance in her account.
She closed the joint checking account and
ended her engagement to Attorney
Schoenecker.
¶4 Attorney Schoenecker repaid part of
the loan balance. At some point the former
fiancée filed a collection action against
him. The parties reached a settlement, and
Attorney Schoenecker paid the former fiancée
over $32,000 as part of a full resolution of
their financial issues.
¶5 In December 2008, Attorney
Schoenecker used the former fiancée's
personal information to enter her business
account without her permission and made
checks payable to himself. As a result of
these actions, he was charged in two
separate criminal proceedings, one in
Walworth County where he pled guilty to one
felony count of identity theft and was
placed on two years of probation and ordered
to make restitution and pay court costs, and
one in Waukesha County where he pled guilty
to a misdemeanor charge of Theft-Moveable
Property. The Waukesha County circuit court
imposed and stayed a four-month jail
sentence and placed Attorney Schoenecker on
probation for one year. In addition,
Attorney Schoenecker was required to pay
restitution to the former fiancée and pay
court costs.
¶6 In 2008, Attorney Schoenecker became
an associate at the Clair Law Offices. He
told the law firm he was representing his
former fiancée, so she was considered a firm
client. He sent invoices to the former
fiancée in the fall of 2008 showing that she
owed over $13,000. A substantial number of
the entries on the invoices were fraudulent.
¶7 Attorney Schoenecker also set up his
own separate law firm on the side while he
was working as an associate at the Clair Law
Offices. He did not inform the law firm of
this fact. In addition to the incidents
involving the former fiancée and the Clair
Law Office, Attorney Schoenecker's 2011
suspension also arose out of his making
fraudulent statements in his own personal
bankruptcy proceeding.
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¶8 In 2016, Attorney Schoenecker
received an additional one-year license
suspension. See In re Disciplinary
Proceedings Against Schoenecker
(Schoenecker
II), 2016 WI 27, 368 Wis. 2d 57, 878
N.W.2d
163. The misconduct at issue in that case
arose out of Attorney Schoenecker's
involvement in a business partnership he
entered into in 2012 with two other men.
The men established a limited liability
company. One man gave Attorney Schoenecker
$25,000 in cash as his capital contribution,
and the other man contributed $20,000.
Instead of immediately depositing the
$25,000 capital contribution into a business
account, Attorney Schoenecker deposited the
bulk of that money into his own personal
checking account. He also used company
funds to pay personal credit card bills
without preapproval from his partners, and
he withdrew funds from company accounts in
order to gamble at Potawatomi Casino in
Milwaukee.
¶9 Attorney Schoenecker filed his first
petition for reinstatement of his law
license in early 2017. In 2018, this court
denied the petition, agreeing with the
referee that Attorney Schoenecker had failed
to meet his burden of proof to establish the
requirements of reinstatement at that time.
In re Disciplinary Proceedings Against
Schoenecker, 2018 WI 58, 381 Wis. 2d 644,
912 N.W.2d 847. This court stated that
Attorney Schoenecker could again file a
petition for reinstatement six months after
the date of its decision.
¶10 In November 2018, Attorney
Schoenecker filed a second petition for
reinstatement. A public hearing was held
before the referee on June 18 and 19, 2019.
Numerous witnesses testified at the hearing
in favor of Attorney Schoenecker's
reinstatement petition.
¶11 One of the witnesses who testified
on Attorney Schoenecker's behalf was James
Harrison, a clinical substance abuse
counselor, licensed professional counselor,
international certified gambling addiction
counselor, and board-approved clinical
consultant. Mr. Harrison testified that he
began seeing Attorney Schoenecker in April
of 2015. Mr. Harrison said Attorney
Schoenecker has gone above and beyond what
many people do in outpatient treatment and
has voluntarily continued his counseling
sessions for over four years, whereas Mr.
Harrison normally sees clients for only two
to four months in counseling sessions. Mr.
Harrison testified that Attorney
Schoenecker's willingness to continue the
counseling sessions was indicative of how
seriously he takes his situation. As a
result of this dedication, Mr. Harrison
opined that Attorney Schoenecker's risk
level to return to his previous behavior and
actions has diminished.
¶12 Mr. Harrison testified that Attorney
Schoenecker has come to the conclusion that
gambling can no longer be part of his life
and he has been bet-free for over four
years. Mr. Harrison said:
It should be noted that Attorney
Schoenecker
has a disease. A disease of gambling
addition. It is a disease that often
results in good people making inappropriate
decisions and poor choices.
Not to be used as an excuse by any
means for
his behavior, but certainly a contributing
factor to what he did. It is also a disease
that can be brought under control if treated
immediately and continue to be treated.
Attorney Schoenecker is definitely an
example of this.
But with the continued support of his
family, friends, co-workers, and counseling,
and by continuing with his counseling
sessions, Attorney Schoenecker can and will
make a positive difference in his life as
well as the lives of others.
Therefore, if he follows his treatment
plan,
continues to make the changes that are
necessary and needed in his life, continues
with his counseling sessions; develops,
utilizes, and maintains a positive support
system and network and acts and lives
responsibly, Attorney Schoenecker can and
will make sure that he will not put himself
or others in this predicament again.
¶13 While Mr. Harrison agreed that there
is no guarantee Attorney Schoenecker would
not relapse, he stated the chances of
relapse were very minimal so long as
Attorney Schoenecker continues what he has
been doing for the past four years. When
asked if had any opinion regarding whether
anything outside of the gambling addiction
might explain Attorney Schoenecker's
conduct, Mr. Harrison said that lying and
misconceptions were part of a gambling
addiction. He said, "it is a body rush.
They will do anything they can to obtain
that, whether it's lying, whether it's
stealing, whether it's embezzling. So this
is part of the addiction."
¶14 Other witnesses, including friends
of Attorney Schoenecker, his sister, and
father also testified that Attorney
Schoenecker has been humbled by his
downfall, has become compassionate toward
others, and has gone out of his way to help
other people.
¶15 Attorney Schoenecker testified that
if he were reinstated he wanted to help
others and might be interested in working as
a public defender given what he has learned
going through his own criminal proceedings.
¶16 The parties stipulated to the
admission into evidence of the transcript
from the first reinstatement hearing, which
was held in July 2017. The transcript from
that hearing included testimony from
Attorney Schoenecker's former fiancée, one
of Attorney Schoenecker's business partners,
and an attorney from the Clair Law Offices.
All three of those individuals testified in
the first reinstatement hearing that, in
their opinion, Attorney Schoenecker does not
have the moral character to have his law
license reinstated.
¶17 The referee in this reinstatement
proceeding issued his report and
recommendation on September 18, 2019.
Referee Winiarski echoed the opinion of the
referee from the first reinstatement
proceeding that "this is a most difficult
reinstatement case." The referee noted that
the sheer number and nature of Attorney
Schoenecker's moral lapses, which led to the
two disciplinary proceedings, indicated that
there was more than a simple gambling
addiction problem involved. However, the
referee noted that Attorney Schoenecker
fully admits to his misconduct, does not
blame others for the misconduct, and
expresses a degree of disbelief that he
committed the acts of misconduct. The
referee opined that, "such reflection on his
part is certainly an indication that he has
gone through considerable self-examination
of his misconduct." The referee noted that
according to many of Attorney Schoenecker's
witnesses, he has expressed genuine remorse
for his actions; he has made restitution to
his victims; and there was also testimony
regarding the spiritual reflections and
actions he has taken since the time of his
misconduct.
¶18 The referee concluded that Attorney
Schoenecker, "as a result of his misconduct,
experienced tumultuous changes in his life
and he is not likely to ever repeat such
misconduct, given the consequences."
¶19 The referee noted that this court
has indicated that the primary focus of a
reinstatement hearing should be on the
petitioner's conduct between the start of
the suspension and the reinstatement.
See
In re Disciplinary Proceedings Against
Carroll, 2004 WI 19, ¶16, 269 Wis. 2d 172,
675 N.W.2d 792. Accordingly, the referee
recommends that Attorney Schoenecker's
license to practice law in Wisconsin be
reinstated. The referee further recommends
that as a condition of reinstatement,
Attorney Schoenecker be required to continue
monthly counseling sessions with either his
current counselor or a counselor with
similar credentials. The referee recommends
the counseling should address not only
Attorney Schoenecker's gambling addiction,
but also any other possible causes for his
previous misconduct. The referee recommends
that the counselor be required to file semi-
annual progress reports with the Office of
Lawyer Regulation (OLR) and that such
counseling be required to continue for a
period of at least three years after
reinstatement. Finally, the referee
recommends that Attorney Schoenecker be
responsible for all costs of the
reinstatement proceeding.
¶20 No appeal has been filed from the
referee's report and recommendation.
Supreme Court Rule (SCR) 22.31(1) provides
the standard to be met for reinstatement.
The petitioner must show by clear,
satisfactory, and convincing evidence that
he or she has the moral character to
practice law; that his or her resumption of
the practice of law will not be detrimental
to the administration of justice or
subversive of the public interest; and that
he or she has complied with SCR 22.26 and
the terms of the suspension. In addition to
these requirements, SCR 22.29(4) states
related requirements that the petition for
reinstatement "shall show." All of these
additional requirements are effectively
incorporated into SCR 22.31(1).
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¶21 This court will adopt a referee's
findings of fact unless they are clearly
erroneous. Conclusions of law are reviewed
de novo. See In re Disciplinary
Proceedings
Against Jennings, 2009 WI 26, ¶22, 316
Wis.
2d 6, 762 N.W.2d 648.
¶22 After careful review of this matter,
we adopt the referee's findings of fact and
conclusions of law and agree with the
referee that Attorney Schoenecker has
demonstrated he has met the burden of proof
imposed upon him by our Supreme Court Rules.
We agree with the referee that, in order to
ensure, to the extent possible, that
Attorney Schoenecker will not relapse, he
should be required to continue monthly
counseling either with Mr. Harrison or a
counselor with similar credentials for a
period of three years, with the counselor
being required to file semi-annual progress
reports with the OLR. We also agree with
the referee that Attorney Schoenecker should
be responsible for the full costs of this
reinstatement proceeding.
¶23 IT IS ORDERED that the petition for
reinstatement of the license of James M.
Schoenecker to practice law in Wisconsin is
granted, effective the date of this order.
¶24 IT IS FURTHER ORDERED that, for a
period of three years from the date of this
order, James M. Schoenecker shall be
required to continue monthly counseling,
either with his current counselor or a
counselor with similar credentials. The
counseling should address not only James M.
Schoenecker's gambling addiction, but also
other possible causes for his previous
misconduct. The counselor shall file semi-
annual progress reports with the Office of
Lawyer Regulation.
¶25 IT IS FURTHER ORDERED that, within
60 days of the date of this order, James M.
Schoenecker shall pay to the Office of
Lawyer Regulation the costs of this
proceeding, which are $14,754.78 as of
October 7, 2019.
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