Office of Lawyer Regulation v. Banks

2010 WI 105, 787 N.W.2d 809, 329 Wis. 2d 39, 2010 Wisc. LEXIS 183
CourtWisconsin Supreme Court
DecidedAugust 24, 2010
DocketNo. 2002AP1871-D
StatusPublished
Cited by5 cases

This text of 2010 WI 105 (Office of Lawyer Regulation v. Banks) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Lawyer Regulation v. Banks, 2010 WI 105, 787 N.W.2d 809, 329 Wis. 2d 39, 2010 Wisc. LEXIS 183 (Wis. 2010).

Opinion

PER CURIAM.

¶ 1. We review the report and recommendation of the referee, Reserve Judge Timothy Vocke, that Attorney Elvis C. Banks' petition for the reinstatement of his license to practice law in Wisconsin be denied.1 After fully reviewing the matter, we agree that Attorney Banks has not satisfied the requirements for reinstatement, and we therefore deny the reinstatement petition. We further determine that Attorney Banks should be required to pay the costs of the reinstatement proceeding, which were $7,760.44 as of February 16, 2010.

¶ 2. The standards that apply to all petitions seeking reinstatement after a disciplinary suspension or revocation are set forth in SCR 22.31(1).2 In particular, the petitioning attorney must demonstrate by clear, satisfactory, and convincing evidence that he or she has [41]*41the moral character necessary to practice law in this state, 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 the attorney has complied fully with the terms of the suspension order and SCR 22.26. In addition, SCR 22.31(l)(c) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4)(a)-[(4m)].3 Thus, [42]*42the petitioning attorney must demonstrate that the required representations in the reinstatement petition are substantiated.

¶ 3. Attorney Banks was admitted to the practice of law in Wisconsin in September 1997. This court revoked his license to practice law in this state on July 16, 2003. In re Disciplinary Proceedings Against Banks, 2003 WI 115, 265 Wis. 2d 45, 665 N.W.2d 827. In that disciplinary proceeding the Office of Lawyer Regulation (OLR) filed an amended complaint that charged Attorney Banks with 42 separate counts of professional misconduct arising out of 20 separate representations. Attorney Banks pled no contest to "each and every allegation" in the amended complaint. The counts of professional misconduct included eight violations involving dishonesty, fraud, deceit or misrepresentation; eleven violations for failure to follow client trust account rules; ten violations for failing to provide competent representation; eight violations for failing to act with reasonable diligence and promptness in representing a client; and one violation for knowingly disobeying an obligation under the rules of a tribunal.4 In that pro[43]*43ceeding, the referee commented that Attorney Banks tended to cast blame for his misconduct on others and did not appreciate or even understand the gravity of his misconduct.

¶ 4. On May 8, 2009, Attorney Banks filed a petition for reinstatement. In his petition he alleged, among other things, that he had complied fully with the terms of the order of revocation, that he had maintained competence and learning in the law, that his conduct since the revocation had been exemplary and above reproach, and that he had fully complied with the requirements set forth in SCR 22.26. Attorney Banks stated that during the period of his revocation he had worked as a substitute teacher and a security guard.

¶ 5. Both the Board of Bar Examiners (BBE) and the OLR opposed Attorney Banks' reinstatement petition. The BBE stated that Attorney Banks had not provided evidence of attendance for the required number of continuing legal education (CLE) hours. The OLR contended that Attorney Banks could not meet the required standard of proof on a number of the requirements for reinstatement.

¶ 6. After conducting a public hearing as required by SCR 22.31, the referee issued a report recommending that Attorney Banks' reinstatement petition be denied. The referee found that Attorney Banks was not prepared for the hearing and did not have documentation to support many of the allegations in his reinstate[44]*44ment petition. Indeed, the referee found that on many issues Attorney Banks had no recollection of events and had no documents with which he could refresh his recollection.

¶ 7. The referee found that Attorney Banks had failed to satisfy the requirements for reinstatement in a host of ways. First, the referee noted that the BBE had filed a report indicating that Attorney Banks had failed to report attendance for a sufficient number of CLE hours. See SCR 31.06 (BBE shall determine the attendance and reporting requirements for a person seeking reinstatement after disciplinary suspension or revocation); CLE 11.03 (lawyer seeking reinstatement must show 30 hours of CLE attendance per reporting period up to a maximum of 60 hours). Attorney Banks appeared at the reinstatement hearing without even verifying with the BBE that he had obtained the necessary CLE credits. Thus, Attorney Banks had not demonstrated that he had maintained learning and competence in the law.

¶ 8. Second, the referee found that Attorney Banks had not complied with the requirements of SCR 22.26 following his revocation. He failed to notify his clients that his license to practice law in Wisconsin had been revoked and failed to make arrangements for the winding up of his practice, including the return of client files to the clients. See SCR 22.26(l)(a) and (d). Attorney Banks also failed to notify the courts in which he had pending matters at the time of the revocation. See SCR 22.26(1)(c). Indeed, in at least one instance, both the client and the circuit court learned of the revocation when Attorney Banks simply failed to appear in court to represent the client at a plea and sentencing hearing. Attorney Banks also failed to file his post-revocation affidavit showing compliance with the requirements of [45]*45SCR 22.26 until March 2006, more than two and one-half years after his revocation. See SCR 22.26(l)(e) (affidavit to be filed within 25 days after suspension or revocation). Further, the referee found that the affidavit, when it was finally filed, was not accurate.

¶ 9. The referee further found that Attorney Banks had not complied with this court's revocation order, which required Attorney Banks to pay the full costs of his disciplinary proceeding. Although the referee found that Attorney Banks had paid nearly $3,000 toward the original cost amount of approximately $6,800, the referee also found that Attorney Banks had failed to comply with the several payment schedules he had negotiated with the OLR.

¶ 10. The referee also found that Attorney Banks' conduct since his revocation had not been exemplary and above reproach. For example, Attorney Banks failed to file a tax return for 2003 and failed to file amended tax returns as needed for the years 1997 through 2002.

¶ 11. In addition, the referee concluded that Attorney Banks had not demonstrated that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar of this state. On the reinstatement questionnaire that Attorney Banks submitted to the OLR, he stated that he had been denied an opportunity to earn a living practicing law and that this court's revocation order had caused him to lose an estimated $1 million in income. The referee indicated that these comments demonstrated an attitude that practicing law is a right rather than the privilege it truly is.

¶ 12. Moreover, the referee found that Attorney Banks had attempted to shift the blame for or minimize the misconduct that led to the revocation of his license, [46]

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Cite This Page — Counsel Stack

Bluebook (online)
2010 WI 105, 787 N.W.2d 809, 329 Wis. 2d 39, 2010 Wisc. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-lawyer-regulation-v-banks-wis-2010.