2013 WI 39
SUPREME COURT OF WISCONSIN CASE NO.: 2007AP2763-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Barry LeSieur, Attorney at Law:
Office of Lawyer Regulation, Complainant-Respondent, v. Barry LeSieur, Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST LESIEUR
OPINION FILED: May 3, 2013 SUBMITTED ON BRIEFS: ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING:
ATTORNEYS: 2013 WI 39 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2007AP2763-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Barry LeSieur, Attorney at Law:
Office of Lawyer Regulation, FILED Complainant-Respondent, MAY 3, 2013 v. Diane M. Fremgen Clerk of Supreme Court Barry LeSieur,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. In this matter, we consider a motion
filed by the Office of Lawyer Regulation (OLR) seeking a suspension of the license of Attorney Barry LeSieur to practice
law in Wisconsin due to his alleged noncompliance with the conditions we imposed on his practice of law in a prior
disciplinary opinion and order in this same proceeding. See In re Disciplinary Proceedings Against LeSieur, 2010 WI 117, 329
Wis. 2d 349, 789 N.W.2d 572 (LeSieur I). Because it appeared No. 2007AP2763-D
that there were factual issues regarding whether Attorney
LeSieur had violated his obligations under LeSieur I, we
referred the OLR's motion to a referee with directions to
conduct a hearing, to make findings of fact and conclusions of
law regarding whether or not Attorney LeSieur had complied with
our order, and to make a recommendation regarding the
appropriate type and level of sanction, if any, that the court
should impose on Attorney LeSieur, if noncompliance was found.
After receiving the referee's report and recommendation, we
issued an order to Attorney LeSieur directing him to show cause
why his license should not be suspended as recommended by the
referee. We now review the report and recommendation of the
referee and Attorney LeSieur's response to the order to show
cause.
¶2 Based on Attorney LeSieur's default as found by the
referee, we conclude that Attorney LeSieur failed to comply with
the order of this court in LeSieur I and with multiple orders of the referee. We therefore determine that Attorney LeSieur's
license to practice law in Wisconsin should be suspended until
such time as he meets the requirements we set forth below, that
the conditions on his practice of law in this state should be
extended for an additional period of two years following the
date on which his license is reinstated, and that he should be
required to pay the full costs of this motion proceeding.
¶3 The conduct underlying the original charge against
Attorney LeSieur was his third conviction for driving while
2 No. 2007AP2763-D
intoxicated (OWI).1 In addition to publicly reprimanding
Attorney LeSieur, the court placed a number of conditions on his
continued practice of law. In particular, the LeSieur I
decision and order required Attorney LeSieur to execute one or
more releases that complied with the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.
§ 201 et seq., and all applicable federal and state laws and
that authorized the disclosure of his health records for each
treatment provider who was providing or had provided alcohol-
related or substance abuse-related treatment or services to
Attorney LeSieur within the preceding ten years. The releases
were to authorize disclosure to his treatment providers so that
they could share information regarding his condition and to the
OLR so that it could monitor his situation and ensure compliance
with the conditions imposed on his practice. The court's order
in LeSieur I directed the OLR to maintain the confidentiality of all of the documents or information it received. Our order
required the release(s) signed by Attorney LeSieur to remain in
effect for a period of two years.
¶4 The order in LeSieur I further required Attorney
LeSieur to undergo an alcohol and other drug abuse (AODA)
evaluation by a professional AODA counselor or treatment
provider, who was to produce a written report of the evaluation.
The written report was required to include recommendations for
1 Although it was Attorney LeSieur's third OWI conviction, it was the fifth time that he had been arrested for OWI.
3 No. 2007AP2763-D
Attorney LeSieur's continuing treatment or maintenance.
Attorney LeSieur was ordered to comply with all such
recommendations.
¶5 Finally, the LeSieur I order mandated that for a
period of two years, Attorney LeSieur must undergo random
alcohol and substance abuse screenings at his own expense. The
OLR was instructed to direct and monitor these screenings.
¶6 In June 2011 the OLR filed the motion now under
consideration.2 Its motion simply moved the court to issue an
order requiring Attorney LeSieur to show cause why his license
should not be suspended for willful failure to comply with the
conditions set forth in LeSieur I. Supporting the motion was an affidavit of Linda Albert, the monitoring supervisor of the
Wisconsin Lawyers Assistance Program (WisLAP). Albert's
affidavit stated that following the issuance of the LeSieur I
decision, the OLR had referred Attorney LeSieur to WisLAP as its
designee for monitoring the conditions imposed on his practice.
The affidavit provided a detailed recitation of WisLAP's
interactions with Attorney LeSieur. After receiving a
sufficient AODA assessment from the AODA counselor that Attorney
LeSieur had been seeing and after discussions with Attorney
LeSieur, WisLAP finally received a signed monitoring contract in
March 2011. Albert alleged that over the course of the next
2 As it did in In re Disciplinary Proceedings Against Lister, 2012 WI 102, 343 Wis. 2d 532, 817 N.W.2d 867, the OLR filed the present motion for a suspension in the original disciplinary proceeding rather than initiating a separate investigation and new disciplinary proceeding.
4 No. 2007AP2763-D
month, Attorney LeSieur had violated the WisLAP monitoring
contract and the conditions imposed in LeSieur I in a number of
ways.
¶7 This court initially directed the OLR to provide the
legal basis for bringing such an enforcement motion in the
underlying disciplinary proceeding rather than filing a new
complaint and to explain the nature of the suspension it was
seeking. The OLR subsequently responded that, although it could
bring a new complaint alleging a charge of noncompliance with a
court order, it brought the motion seeking an order to show
cause as a way to expedite the matter. It further stated that
it was seeking an indefinite suspension of Attorney LeSieur's
license until such time as he complied with the conditions
imposed in LeSieur I. Finally, it asserted that this court had a legal basis either under its contempt powers or its inherent
authority to regulate the practice of law in this state to
suspend Attorney LeSieur's license immediately after issuing an
order to show cause and receiving a response.
¶8 Without deciding the motion, we issued an order on
October 14, 2011, requiring Attorney LeSieur to file a response
to the OLR's motion and referring the motion to a referee since
there appeared to be potential disputes of fact. Our order
directed the referee to conduct an evidentiary hearing and then
to file a report that contained (1) findings of fact "as to all
relevant facts that relate to Attorney LeSieur's compliance or
noncompliance with the conditions set forth in the court's
[LeSieur I decision]," (2) conclusions of law as to "whether 5 No. 2007AP2763-D
Attorney LeSieur's conduct has or has not violated those
conditions," and (3) a recommendation as to what sanctions or
discipline, if any, should be imposed on Attorney LeSieur if he
was found to have failed to comply with the conditions in
LeSieur I.
¶9 Reserve Judge William Eich was ultimately appointed as
the referee. The OLR filed two motions before the referee. One
motion sought an order from the referee directing Attorney
LeSieur to sign a new release of medical records. Attorney
LeSieur initially signed such a release on October 27, 2010, as
required by the LeSieur I decision. On October 26, 2011, however, Attorney LeSieur notified the OLR that he was revoking
that release. The OLR's motion asked the referee to order
Attorney LeSieur to sign a new copy of that same release.
¶10 Attorney LeSieur objected to signing another release
form because he viewed the OLR's release as going beyond what
this court had ordered in LeSieur I and because he viewed the
information already released to have been improperly disclosed
to inappropriate persons/entities, including WisLAP and others
with whom WisLAP had spoken. He also objected that the release
violated both HIPAA and state law because it did not limit the
use of the released information to the present disciplinary
proceeding and because it did not require the return or
destruction of all copies of released records upon completion of
this disciplinary proceeding.
¶11 The OLR's second motion asked the referee to order
Attorney LeSieur to undergo an independent medical examination 6 No. 2007AP2763-D
(IME) by addiction psychiatrist Dr. Thomas Rowell. The request
for a second, independent examination by a specific addiction
psychiatrist stemmed from WisLAP, which alleged that although
Attorney LeSieur had undergone an AODA evaluation by the
counselor he had already been seeing, in compliance with the
LeSieur I requirement, he was not being sufficiently forthcoming
with his counselor and other health care providers and not being
sufficiently compliant with its monitoring program. It made
this evaluation by an independent addiction psychiatrist one of
the terms of a modified monitoring contract that it demanded
Attorney LeSieur must sign.
¶12 Attorney LeSieur refused to execute the modified
contract because, among other things, he viewed the requirement
of another evaluation by an addiction psychiatrist as beyond the
scope of the LeSieur I decision and as an additional financial burden he should not have to bear.
¶13 In a decision and order dated February 28, 2012,3 the
referee generally rejected Attorney LeSieur's objections to the
OLR's release form as exceeding the scope of the LeSieur I
decision, with the exception of a single phrase that the referee
deleted. The referee therefore found Attorney LeSieur to be out
of compliance with his obligation to sign a release form and
ordered Attorney LeSieur to execute the release proffered by the
OLR (with the deletion of the single phrase). 3 The order was filed with the clerk of this court on March 1, 2012. Because the referee referred to his decisions and orders by the dates on which he signed them, this opinion will also do so in order to avoid confusion.
7 No. 2007AP2763-D
¶14 The referee also rejected Attorney LeSieur's arguments
against an order for an IME. Attorney LeSieur contended that
the referee lacked authority to issue such an IME order because
(1) the rule of civil procedure authorizing IMEs, Wis. Stat.
§ 804.10, speaks of "the court in which the action is pending"
as the entity that can order an IME, and (2) an IME was not
mentioned as one of the conditions of practice set forth in the
LeSieur I decision. The referee concluded that since SCR 22.16
gave him the powers of a circuit court trying a civil matter, he
had the authority to order an IME. He also concluded that the
results of an IME would be relevant to whether Attorney LeSieur
had violated the conditions imposed in LeSieur I and to what the
appropriate sanction might be. He therefore ordered Attorney
LeSieur to schedule an appointment with Dr. Rowell.
¶15 When the referee learned that Attorney LeSieur had not
complied with the February 28, 2012 order, he issued a second
order on April 18, 2012, explicitly directing Attorney LeSieur
to execute the revised medical release and to schedule an
appointment with Dr. Rowell by April 25, 2012.
¶16 Attorney LeSieur did not comply with the referee's
orders. Instead, he filed a motion for a protective order in
this court seeking to have the referee's interlocutory orders
declared unlawful and void. In an order dated May 22, 2012,
this court denied the motion as an improper attempt at an
interlocutory appeal. Because Attorney LeSieur's motion
complained that the OLR's release form was still broader than
the language of the court's order in LeSieur I, the May 22, 2012 8 No. 2007AP2763-D
order further clarified that the release that Attorney LeSieur
must sign should include the records of health care providers or
mental health providers
relating to the prescribing of, the use of, or the potential use of (1) potentially addictive pain medications, (2) anti-depressant or anti-anxiety medications, or (3) mood-altering medications. The release need not authorize the disclosure of (a) medical records that were/are not created by treatment providers who are providing or have provided alcohol- related or substance abuse-related treatment or services and (b) medical records that were/are not related to the prescribing of, the use of, or the potential use of (1) potentially addictive pain medications, (2) anti-depressant or anti-anxiety medications, or (3) mood-altering medications. The court also directed the referee to give further
consideration to Attorney LeSieur's arguments that the OLR's
release failed to comply with HIPAA and its regulations and with
Wis. Stat. § 146.82.
¶17 The referee invited additional briefing from Attorney
LeSieur on the HIPAA and § 146.82 issues. Attorney LeSieur
argued that compliance with HIPAA required the releases to state
(1) that the parties were prohibited from using or disclosing his protected health information for any purpose other than the
present disciplinary proceeding, and (2) that all parties
receiving copies of his protected health records must return or
destroy those records at the conclusion of this proceeding.
¶18 In addition, because Attorney LeSieur continued to
refuse to sign the release or to schedule an IME with
Dr. Rowell, the OLR filed a motion asking the referee to
conclude that Attorney LeSieur was in default as a sanction for
9 No. 2007AP2763-D
his disobedience of the referee's orders and to issue a report
on the basis of the allegations in the OLR's original motion for
a suspension.
¶19 In an order dated July 23, 2012, the referee addressed
both the HIPAA issues and the OLR's motion for default. With
respect to the release form's compliance with HIPAA, the referee
indicated that while he found the OLR's releases to be in
compliance with HIPAA and applicable Wisconsin statutes, he
nonetheless believed that "it would not be inappropriate" to add
Attorney LeSieur's requested brief additions to the release
forms, and he directed the OLR to do so. The referee, however,
found that Attorney LeSieur had failed to offer any reasons to
make additional alterations to the releases. He therefore once
more ordered Attorney LeSieur to execute the release forms, as
modified. He also again ordered Attorney LeSieur to make an
appointment for an IME with Dr. Rowell within 10 business days
and to respond to the OLR's discovery requests.
¶20 With respect to the OLR's default motion, the referee found that Attorney LeSieur's conduct was indeed egregious,
which would support finding him to be in default. The referee, however, declined to declare Attorney LeSieur to be in default
or impose other sanctions at that time. Giving Attorney LeSieur one more chance, the referee held the OLR's default motion in
abeyance "pending [Attorney] LeSieur's compliance with the terms and conditions [of the July 23, 2012 order]."
¶21 Attorney LeSieur responded to the July 23, 2012 order
in three ways. First, he sent a letter to the referee that 10 No. 2007AP2763-D
again argued that the referee lacked authority to order the IME.
Second, Attorney LeSieur altered the release form in a number of
significant ways that he believed to be appropriate, executed
the revised form, and then sent it to the OLR. Third, Attorney
LeSieur did respond to the OLR's discovery requests, but the OLR
asserted that several of his answers were nonresponsive to the
actual requests.
¶22 The OLR brought the alteration of the release form and
its belief that some discovery responses were nonresponsive to
the attention of the referee. The OLR asked the referee to take
up again its motion for sanctions, including a declaration of
default, due to Attorney LeSieur's continuing noncompliance with
the referee's orders.
¶23 In light of Attorney LeSieur's response to his
July 23, 2012 order, the referee proceeded to issue a final
report and recommendation on August 16, 2012.
¶24 The referee noted that where a respondent attorney
engages in conduct during a disciplinary proceeding that is found to be egregious, a referee is warranted, as a sanction for
violation of the referee's orders, to declare the respondent attorney to be in default and to proceed on the basis of the
OLR's complaint. In re Disciplinary Proceedings Against Kelly,
2012 WI 55, ¶24, 341 Wis. 2d 104, 814 N.W.2d 844; In re
Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286
Wis. 2d 24, 704 N.W.2d 581.
¶25 The referee once more found Attorney LeSieur's
persistent and ongoing refusal to comply with the order of this 11 No. 2007AP2763-D
court and with the referee's orders to be egregious. In
particular, the referee pointed to the fact that Attorney
LeSieur had willfully disobeyed the referee's three orders to
execute the medical records release form and to schedule an IME
with the designated addiction psychiatrist. The referee further
noted that in the ten months that had passed since the referral
of the matter to the referee, the situation regarding Attorney
LeSieur had remained essentially the same as it had been at the
time of the court's order. Although Attorney LeSieur had been
ordered multiple times to execute the medical records release
form, he still had not done so, except for signing a release
form that he had unilaterally and significantly altered to
comport with his view of what was lawful. The referee therefore
concluded that, based on the allegations contained in the OLR's
motion and accompanying affidavit, which were now established as
true due to Attorney LeSieur's default, Attorney LeSieur had
intentionally failed to comply with the conditions imposed on
his practice in this court's LeSieur I decision and with the
referee's multiple orders.
¶26 Given Attorney LeSieur's noncompliance and the court's
concern for monitoring Attorney LeSieur's alcohol dependence,
the referee made four recommendations to the court:
• Attorney LeSieur's license to practice law in Wisconsin
should be suspended forthwith;
• Because Attorney LeSieur has not yet complied with the
conditions imposed on his practice of law by this court
in LeSieur I, those conditions should be extended for an 12 No. 2007AP2763-D
additional two years from the date of their expiration or
the date on which Attorney LeSieur's license is
reinstated, whichever is later;
• Attorney LeSieur should be ordered to submit to
monitoring of his compliance with those conditions by
WisLAP, as the OLR's designee; and
• Attorney LeSieur should be ordered to submit to an IME
and evaluation by Dr. Rowell.
¶27 Following the filing of the referee's report, although
there is no rule that specifically authorizes an appeal from a
referee's report in this type of situation, Attorney LeSieur
filed a document labeled an "appeal" from the referee's report.
The "appeal" made essentially the same arguments that Attorney
LeSieur had made to the referee regarding the referee's lack of
authority to order him to sign release forms or undergo an IME.
It also objected to the presence or absence of certain language
in the release forms.
¶28 On September 17, 2012, in light of the referee's report and recommendation, this court issued an order directing
Attorney LeSieur to show cause why his license should not be suspended. Attorney LeSieur filed a short response, in which he
essentially argued that this court's procedure for considering the OLR's motion was a violation of the court's own rules. He
noted this court's comments in In re Disciplinary Proceedings
Against Lister, 2012 WI 102, ¶¶19-22, 343 Wis. 2d 532, 817
N.W.2d 867 (Lister II), where we recognized that there are no
specific rules that address the post-discipline type of motion 13 No. 2007AP2763-D
filed by the OLR in that case and this one and explained the
basis for referring the OLR's motion to a referee. Attorney
LeSieur argued that because the rules provide a complete
procedure for investigating and prosecuting violations of the
Rules of Professional Conduct for Attorneys, the OLR and the
court were bound to use only that procedure for litigating his
alleged violation of his obligations under LeSieur I. In other
words, he contended that the OLR should have been required to
obtain a finding of cause to proceed from a preliminary review
committee and then should have filed a new disciplinary
complaint rather than filing a sanction motion in the existing
disciplinary case. According to Attorney LeSieur, that
complaint should have been handled in the ordinary manner under
SCRs 22.16-22.17, with a referral to a referee and then an
opportunity for a full appeal. In any event, he asserted that
his appeal of the referee's report and recommendation was still
proper under SCR 22.17 and that this court should review the
referee's report in the context of his appeal (after full
briefing and possibly oral argument). ¶29 First, we will address Attorney LeSieur's arguments
regarding the procedures used to resolve any factual issues regarding the OLR's motion and to review the referee's report
and recommendation. As an initial matter, while we again acknowledge that our rules do not contain an explicit procedure
for resolving a motion alleging a violation of a prior
disciplinary order in the same disciplinary proceeding, we
reiterate that the procedure we followed in both Lister II and 14 No. 2007AP2763-D
this case follows a procedure similar to the one that we
utilized in In re Disciplinary Proceedings Against Hetzel, 124
Wis. 2d 462, 369 N.W.2d 394 (1985). That procedure gave
Attorney LeSieur notice of the allegations against him through
the OLR's motion and allowed Attorney LeSieur the opportunity to
present evidence and argument to a referee regarding what he did
in response to our LeSieur I order and whether his actions
violated his obligations under that order. Although this
court's rules provided the OLR a basis on which it could have
chosen to proceed with an entirely new disciplinary complaint in
a new proceeding, there is no existing rule that expressly
requires it to initiate a separate disciplinary case when
seeking to compel compliance with an order of this court. Thus,
we reject Attorney LeSieur's contention that our referral of the
OLR's motion in the underlying disciplinary proceeding to a
referee was a violation of our rules.
¶30 We also reject Attorney LeSieur's argument that we are
compelled to recognize his "appeal." Rule 22.17 is part of the
set of rules that govern the procedure for handling formal disciplinary complaints filed by the OLR. Rules 22.11-22.18
provide the procedure that is to be followed by the OLR and a respondent attorney for litigating and reviewing a formal
complaint in the first instance. Rule 22.17, which authorizes an appeal, is just one part of that procedure. Thus, the
context makes clear that SCR 22.17 applies to referee reports
that are addressed to an OLR complaint. Attorney LeSieur
already had the benefit of such a full litigation procedure and 15 No. 2007AP2763-D
full appeal when the OLR's complaint in this case was initially
considered. This court ultimately rejected his appeal, and
imposed a public reprimand and conditions on his continued
practice of law. LeSieur I, 329 Wis. 2d 349, ¶¶15, 18, 20-24.
¶31 The OLR filed a motion in the same disciplinary
proceeding seeking the imposition of a sanction due to Attorney
LeSieur's failure to comply with the conditions we imposed.
This was a motion in an existing proceeding and not a new
complaint. Thus, the full procedure of SCRs 22.11-22.18 did not
apply by its terms. Although we referred the motion to a
referee for the completion of certain tasks, which mirrored the
way in which a complaint would be handled, that does not mean
that the report the referee filed in response to our referral
order gives rise to a right to appeal under SCR 22.17. Indeed,
because we noted this fact in Lister II, we issued an order in that proceeding that afforded the parties an opportunity to
object to the referee's report. 343 Wis. 2d 532, ¶23. We did
essentially the same thing in this case when we issued an order
to show cause to Attorney LeSieur. He was given notice of the
referee's findings by receiving a copy of the referee's report
and an opportunity to be heard regarding why the referee's
findings should not lead to a suspension of his license to
practice law in Wisconsin.
¶32 We now turn to our review of the referee's report. As
in other review situations, we will affirm the referee's
findings of fact unless they are clearly erroneous, but we will
review the referee's conclusions of law on a de novo basis. 16 No. 2007AP2763-D
Lister II, 343 Wis. 2d 532, ¶23; see also In re Disciplinary
Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,
740 N.W.2d 125. "We will determine the appropriate type and
level of sanction or discipline given the particular facts of
the case, independent of the referee's recommendation, but
benefiting from it." Lister II, 343 Wis. 2d 532, ¶23; see also
In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44,
261 Wis. 2d 45, 660 N.W.2d 686.
¶33 Our review of this case, however, is framed by the
fact that the referee declared Attorney LeSieur to be in default
due to his repeated refusal to comply with the orders of the
referee. Thus, the issues we review are limited to whether the
referee erroneously exercised his discretion in finding that
Attorney LeSieur had repeatedly disobeyed the referee's orders
and therefore whether a declaration of default and the resulting
disregard of his substantive arguments were proper. See Martin v. Griffin, 117 Wis. 2d 438, 344 N.W.2d 206 (Ct. App. 1984)
(limiting review of default judgment entered following failure
to answer to whether trial court properly exercised its
discretion in granting default and determining that defendant's
substantive arguments had been waived by default).
¶34 In this instance, the referee declared Attorney
LeSieur to be in default, disregarded his substantive response
to the OLR's motion, and proceeded on the basis of the facts
alleged in the OLR's motion and supporting materials due to
Attorney LeSieur's conduct during the consideration of the
motion. This is akin to a circuit court granting a judgment by 17 No. 2007AP2763-D
default in a civil case because the defendant failed to obey
court orders or statutory requirements or to provide discovery.
See, e.g., Wis. Stat. §§ 802.10(7) (violation of scheduling or
pretrial order), 804.12 (failure to provide discovery), and
805.03 (failure to prosecute action or to comply with procedural
statutes). We have held that referees in disciplinary cases may
similarly declare a respondent attorney to be in default when
the attorney has disobeyed the referee's scheduling or pretrial
orders, violated applicable rules of procedure, or failed to
comply with his/her discovery obligations in the disciplinary
proceeding. See, e.g., In re Disciplinary Proceedings Against Kelly, 2012 WI 55, ¶21, 341 Wis. 2d 104, 814 N.W.2d 844; In re
Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286
Wis. 2d 24, 704 N.W.2d 581; In re Disciplinary Proceedings
Against Haberman, 128 Wis. 2d 390, 391-92, 395, 382 N.W.2d 439
(1986). Because of the drastic nature of such a sanction,
however, as in civil cases, we have required the referee to find
that the respondent attorney's actions were "egregious" or "in
bad faith" before declaring a respondent attorney to be in
default. Kelly, 341 Wis. 2d 104, ¶22 (citations omitted). An
"extreme, substantial and persistent" failure to follow a
referee's orders without a clear and justifiable excuse can
constitute egregious conduct. See Industrial Roofing Serv. v.
Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898
(citations omitted).
¶35 In this case the referee found that Attorney LeSieur's
repeated violation of his "pretrial" orders constituted 18 No. 2007AP2763-D
"egregious" conduct that warranted disregarding his response to
the motion and proceeding on the basis of the allegations in the
OLR's motion and supporting documents. Generally, we will
sustain such a finding and sanction "if there is a reasonable
basis for the circuit court's [or referee's] determination that
the noncomplying party's conduct was egregious and there was no
'clear and justifiable excuse' for the party's noncompliance."
Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 276-77, 470
N.W.2d 859 (1991), overruled on other grounds by Industrial
Roofing, 299 Wis. 2d 81, ¶61; see also id., ¶41 (decision to
impose sanction in standard civil action and the choice of which
sanction to impose are reviewed for erroneous exercise of
discretion).4
¶36 The referee's finding of egregiousness and declaration
of default is not an erroneous exercise of discretion in this
case. The evidence is clear that Attorney LeSieur has
repeatedly and willfully refused to comply with the terms of
orders issued both by the referee and this court. In LeSieur I,
this court ordered Attorney LeSieur to execute a release for
certain categories of information. He did execute such a
release, but it is undisputed he then revoked that release
4 There is no issue in this case regarding whether an attorney's conduct can be imputed to a party for purposes of imposing a sanction because Attorney LeSieur has represented himself throughout this proceeding. Cf. Industrial Roofing, 299 Wis. 2d 81, ¶61 (erroneous exercise of discretion to impute attorney's conduct to client and enter a sanction of dismissal where client is blameless).
19 No. 2007AP2763-D
approximately one year later, one year prior to the expiration
date for the release established by this court. The referee
ordered him on two occasions to sign a new copy of the release,
from which one potentially problematic phrase had been removed.
Attorney LeSieur, however, did not execute the release in
compliance with either order. He did not execute the release
even after this court denied his motion for interlocutory review
and directed the referee to proceed with the matter and give
further consideration to Attorney LeSieur's arguments based on
HIPAA and Wis. Stat. § 146.82. Attorney LeSieur raised only two
claims that the release form did not comply with those privacy
provisions of state and federal law. In an effort to address
Attorney LeSieur's concerns, the referee directed the OLR to add
language to the release form that addressed Attorney LeSieur's
two requests and directed him yet again to execute the release
as now revised. Even after obtaining what he wanted, Attorney
LeSieur still disregarded the referee's third order and signed
the release only after substantially modifying it to his liking. ¶37 Attorney LeSieur's noncompliance did not end with his
refusal to execute a release form as ordered. There is no dispute that he also repeatedly refused to undergo an
independent medical examination by an addiction specialist. The referee's orders to undergo such an examination were clear, but
Attorney LeSieur willfully disobeyed the orders. While he may not have agreed with the orders, Attorney LeSieur is not
authorized to determine which orders he will obey and which he
is entitled to flaunt or modify to his liking. Especially once 20 No. 2007AP2763-D
this court had rejected his interlocutory appeal, he should have
understood that he had no choice but to comply with the orders
of the referee. He continued, however, to refuse to undergo an
IME, which supports a presumption that he has not been in
compliance with his obligations under our order in LeSieur I and
lacked a meritorious defense to the OLR's motion.
¶38 Finally, we note that the referee found in one of his
interlocutory orders that Attorney LeSieur had failed to comply
with his obligations to respond to the OLR's discovery requests
and that he had not provided a lawful basis for his
noncompliance. His failure to provide proper discovery
responses also warrants a presumption that he lacked a defense
to the OLR's motion.
¶39 Attorney LeSieur does not deny that these events
happened or that he chose not to comply with the referee's
orders. An attorney is not free to disregard the orders issued
by a referee in an attorney disciplinary proceeding, even when
the attorney believes that the referee's orders are invalid or
require modification. Only this court may declare a referee's orders invalid or excuse an attorney from complying with them.
We see no reason to invalidate the orders issued by the referee in this matter. Attorney LeSieur's repeated and willful failure
to comply with those orders is therefore egregious and merits finding him to be in default with respect to the OLR's motion.
We therefore agree with the referee that the OLR's allegations
that Attorney LeSieur failed to comply with the provisions of
21 No. 2007AP2763-D
this court's order in LeSieur I are accepted as true by virtue
of Attorney LeSieur's default.
¶40 We turn now to the appropriate sanction that should be
imposed as a result of Attorney LeSieur's noncompliance with our
orders. Attorney LeSieur has been convicted on three occasions
of operating a motor vehicle while intoxicated and was arrested
on suspicion of that offense on two other occasions that did not
result in valid convictions. Attorney LeSieur's record
indicates a potential problem with alcohol and other addictive
or mood-altering medications. He claimed during the initial
disciplinary proceeding that he has not consumed alcohol since
2006. If that is accurate, he is to be commended. His
refraining from alcohol indicates some recognition that he has
problems in this area that require affirmative steps. On the
other hand, his actions since the release of LeSieur I indicate repeated attempts to thwart the monitoring of his condition by
the OLR and its designee. One who is truly eager to overcome
any problems with alcohol or mood-altering medications would
welcome assistance, but Attorney LeSieur has frustrated the
efforts of this court, the referee, and WisLAP to ensure that he
remains on a productive path. This is a troubling pattern.
¶41 We simply cannot tolerate such disobedience of our
orders. Accordingly, we will suspend Attorney LeSieur's license
until he complies with the orders of this court. To leave no
room for doubt or argument, we will clarify the nature of the
release Attorney LeSieur must now sign and we will expressly
require him to undergo an independent medical examination by 22 No. 2007AP2763-D
Dr. Thomas Rowell or another addiction psychiatrist or other
treatment provider designated by the OLR. Given Attorney
LeSieur's failure to comply thus far, the conditions that we
imposed in LeSieur I and those we add in this opinion shall be
extended to remain in effect for a period of two years from the
date on which Attorney LeSieur's license is reinstated.
¶42 We now turn to the issue of costs. The OLR has
indicated that the costs of this supplemental proceeding due to
Attorney LeSieur's noncompliance were $8,987.16 as of
September 6, 2012. We find no reason to depart from our general
practice of requiring a respondent attorney, whose conduct
caused the OLR to bring this proceeding, to pay the full costs
of the proceeding. Attorney LeSieur's conduct led to the filing
of the OLR's motion and the resulting proceedings. He should
therefore be required to pay the associated costs.
¶43 IT IS ORDERED that the license of Barry LeSieur to
practice law in Wisconsin is suspended, effective May 20, 2013,
until such time as he demonstrates full compliance with the
following conditions and until further order of the court: (A) Barry LeSieur shall sign reciprocal releases of
confidentiality. Such release or releases shall authorize the disclosure of Barry LeSieur's health records possessed by each
treatment provider who is providing or has provided alcohol- related or substance abuse-related treatment or services to
Barry LeSieur since September 30, 2000, and shall also authorize
the disclosure by health care providers or mental health
providers of health records relating to the prescribing of, the 23 No. 2007AP2763-D
use of, or the potential use of (1) potentially addictive pain
medications, (2) anti-depressant or anti-anxiety medications, or
(3) mood-altering medications. Such release or releases shall
authorize disclosure to all other health care or mental health
providers covered by the release or releases and to the Office
of Lawyer Regulation and those persons or entities that it
designates to assist it in monitoring Barry LeSieur's compliance
with his obligations under this order. The Office of Lawyer
Regulation and its designees shall maintain as confidential all
information or documents received pursuant to such release or
releases and shall use such information or documents for the
purpose of monitoring Attorney LeSieur's compliance with the
obligations imposed on him by the orders of this court. The
release or releases required by this paragraph shall remain in
effect for a period of two years from the date on which Attorney
LeSieur's license to practice law in Wisconsin is reinstated by
this court. The release or releases to be signed by Attorney
LeSieur shall comply with this paragraph and may be in a form substantially similar to the release form attached as Exhibit 2
to the referee's report filed on August 27, 2012, without any of the alterations made to that release form by Attorney LeSieur.
The release form shall be modified to include the expiration date identified above. Attorney LeSieur must sign the release
or releases in the form provided to him by the Office of Lawyer Regulation and may not make any modifications or alterations to
the language of the release. For purposes of the return or
destruction of disclosed medical records, this disciplinary 24 No. 2007AP2763-D
proceeding will be completed at such time as Attorney LeSieur is
no longer subject to any conditions on his practice of law in
Wisconsin.
(B) Barry LeSieur shall schedule and undergo an
independent medical examination and evaluation by Dr. Thomas
Rowell or another addiction psychiatrist or other treatment
provider designated by the Office of Lawyer Regulation. The
addiction psychiatrist or other treatment provider who performs
this examination and evaluation shall provide to the Office of
Lawyer Regulation a written report, which assesses Barry
LeSieur's substance abuse history and current status and makes
specific recommendations for Barry LeSieur's continuing
treatment or maintenance. This written report shall be
maintained by the Office of Lawyer Regulation and its designees
as confidential pursuant to the release or releases described in
the preceding paragraph. If Attorney LeSieur attempts to
schedule an appointment with Dr. Rowell and he is unable to see
Attorney LeSieur within 60 days after the date of this order, the Office of Lawyer Regulation shall designate another
addiction specialist or treatment provider who will be able to conduct the independent examination and evaluation within 60
days. (C) Barry LeSieur shall enter into the amended monitoring
contract with the Wisconsin Lawyers Assistance Program as previously submitted to him by that program.
¶44 IT IS FURTHER ORDERED that prior to seeking
reinstatement and continuing for a period of two years following 25 No. 2007AP2763-D
the reinstatement of his license, Barry LeSieur shall, at his
own expense, submit to random alcohol and substance abuse
screenings, directed and monitored by the Office of Lawyer
Regulation and its designee.
¶45 IT IS FURTHER ORDERED that Barry LeSieur shall comply
with all written recommendations set forth in the original AODA
evaluation and with all written recommendations set forth in the
written evaluation report that results from the independent
medical examination described in ¶43(B) of this opinion and
order.
¶46 IT IS FURTHER ORDERED that the conditions on Barry
LeSieur's practice of law in Wisconsin set forth in this opinion
shall remain in effect for a period of two years from the date
on which this court reinstates Barry LeSieur's license to
practice law.
¶47 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Barry LeSieur shall pay to the Office of Lawyer
Regulation the costs of this proceeding. ¶48 IT IS FURTHER ORDERED that Barry LeSieur shall comply
with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been
26 No. 2007AP2763-D