Office of Lawyer Regulation v. Daniel Parks

2021 WI 74, 963 N.W.2d 85

Opinion

2021 WI 74

SUPREME COURT OF WISCONSIN CASE NO.: 2016AP85-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Daniel Parks, Attorney at Law:

Office of Lawyer Regulation, Complainant-Respondent, v. Daniel Parks, Respondent-Appellant.

ATTORNEY PARKS REINSTATEMENT PROCEEDINGS Reported at 395 Wis. 2d 500,953 N.W.2d 873 PDC No:2021 WI 10 - Published

OPINION FILED: August 20, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: Per Curiam. NOT PARTICIPATING:

ATTORNEYS: 2021 WI 74 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP85-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings Against Daniel Parks, Attorney at Law:

Office of Lawyer Regulation, FILED Complainant-Respondent, AUG 20, 2021 v. Sheila T. Reiff Clerk of Supreme Court Daniel Parks,

Respondent-Appellant.

ATTORNEY reinstatement proceeding. Reinstatement granted

upon conditions.

¶1 PER CURIAM. Pending before the court is Attorney

Daniel Parks' second petition for reinstatement of his license

to practice law in Wisconsin. Upon consideration of the

reinstatement petition; Attorney Parks' affidavit in support of

his reinstatement petition; the Office of Lawyer Regulation's

(OLR) response pursuant to Supreme Court Rule (SCR) 22.30(4);

the parties' SCR 22.30(5)(a) stipulation; the OLR's memorandum

in support of the stipulation (attaching Attorney Anthony O'Malley's comment in support of reinstatement); and Attorney No. 2016AP85-D

Parks' response to the OLR's memorandum, we conclude that

reinstatement, upon conditions, is appropriate.

¶2 Attorney Parks was admitted to practice law in

Wisconsin in 1991. His license was unblemished until 2016, when

the OLR filed a complaint alleging that Attorney Parks had

committed 19 counts of professional misconduct. The allegations

derived from a grievance filed by Attorney Parks' former law

firm stating, among other things, that it had discovered that

Attorney Parks had performed unauthorized legal work "on the

side" while employed by the firm.

¶3 Following extensive litigation, amended complaints,

and an appeal, this court accepted the referee's conclusion that

Attorney Parks had committed eight of 14 alleged counts of

misconduct.1 See In re Disciplinary Proceedings Against Parks,

2018 WI 110, 384 Wis. 2d 635, 920 N.W.2d 505 (Parks I). We

suspended Attorney Parks' law license for 14 months for his

violation of multiple supreme court rules: for earning fees

from non-firm legal work while employed by a law firm; arranging for two clients to perform work for him in exchange for a

reduction of legal fees and otherwise reducing attorney fees

without his law firm's permission; accepting an unauthorized

$5,000 "gift" from two clients; working on client files on an

unsecured offsite computer belonging to another person; and

The OLR twice amended its complaint, dismissing five 1

counts. This court then dismissed five of the alleged counts of misconduct.

2 No. 2016AP85-D

obtaining two signatures on a "release" designed to limit

Attorney Parks' liability, without properly clarifying his role

in the matter.

¶4 Attorney Parks first sought reinstatement in January

2020. The OLR initially declined to support his reinstatement

petition based on concerns that Attorney Parks might have misled

the Office of the Commissioner of Insurance (OCI) with respect

to statements on Attorney Parks' insurance license renewal. The

OLR also expressed concern that Attorney Parks had not made

restitution to the grievants in the underlying disciplinary

proceeding, but acknowledged that the OLR had not sought

restitution, the referee had not recommended restitution, and

this court had not ordered Attorney Parks to pay restitution.

¶5 A referee was appointed and a reinstatement hearing

was conducted on the first reinstatement petition. By the time

of the hearing, the OLR had identified a new concern: that

Attorney Parks may have claimed an improper tax deduction.

However, at the evidentiary hearing, Attorney Parks presented evidence sufficient to satisfy the referee that Attorney Parks

had relied on professional guidance in both matters and had

dealt in good faith with the OCI and with the Internal Revenue

Service (IRS). On the question of restitution, the referee

reasoned that the referee in the underlying disciplinary case

had not recommended restitution, that this court had accepted

the referee's recommendation, and had not ordered restitution.

The referee recommended Attorney Parks' reinstatement.

3 No. 2016AP85-D

¶6 This court disagreed and denied Attorney Parks' first

reinstatement petition. The court accepted the referee's

findings with respect to the questions involving the OCI and the

IRS, but concluded that Attorney Parks' failure to make

restitution precluded his reinstatement. The court cited

SCR 22.29(4m), observing that the obligation to make restitution

to those harmed by the lawyer's misconduct applies, even if

restitution is not ordered in the original disciplinary

proceeding. See In re Disciplinary Proceedings Against Parks,

2021 WI 10, ¶30, 395 Wis. 2d 500, 953 N.W.2d 873 (Parks II)

(citing In re Disciplinary Proceedings Against Woodard, 2012 WI

41, 340 Wis. 2d 248, 812 N.W.2d 511). Consequently, the court

also concluded that Attorney Parks had not demonstrated that he

possessed the requisite moral character to practice law in this

state. See (former) SCR 22.31(a). The court indicated it would

be "more favorably disposed" to a reinstatement petition "upon a

showing that Attorney Parks has sought in good faith to address

the requirements of SCR 22.29(4m)." Parks II, ¶32. ¶7 In the wake of this court's adverse reinstatement

decision, Attorney Parks promptly took steps to address the

restitution issue. Through counsel, Attorney Parks contacted

each grievant by mail, broaching the issue of restitution.

Former client L.E. informed Attorney Parks that she thought

$4,500 was a satisfactory and appropriate amount of restitution.

Attorney Parks' former law firm, Zacherl, O'Malley & Endejan,

S.C., indicated that $10,000 would be a satisfactory amount of

4 No. 2016AP85-D

restitution. Attorney Parks then entered into payment

agreements with each grievant to pay the requested restitution.2

¶8 On April 2, 2021, Attorney Parks filed his second

reinstatement petition.3 The OLR investigated Attorney Parks'

second petition and determined that there were no new concerns

beyond those previously addressed in the first reinstatement

proceeding. The OLR noted that this court had denied Attorney

Parks' initial reinstatement petition due to Attorney Parks'

failure to pay restitution to persons or entities harmed by his

misconduct. Parks II, ¶31.

¶9 The OLR considered whether Attorney Parks' efforts at

restitution would satisfy this court's concerns, as set forth in

the initial, adverse reinstatement decision.4 The OLR determined

2 Each grievant agreed to an initial payment with the balance to be paid within one year of Attorney Parks' reinstatement. Attorney Parks, though counsel, thus paid $1,000 to L.E. and $3,000 to Zacherl, O'Malley & Endejan, S.C., along with a letter memorializing his commitment to complete the agreed-upon restitution within one year of reinstatement. 3This court permitted Attorney Parks to file a subsequent reinstatement petition in advance of the usual nine-month waiting period required by SCR 22.33(4). In re Disciplinary Proceedings Against Parks, 2021 WI 10, ¶32, 395 Wis. 2d 500, 953 N.W.2d 873 (Parks II). 4 The OLR expressed some reservations about Attorney Parks' payment of restitution and/or costs appearing to be conditioned on his reinstatement. The OLR therefore advised Attorney Parks' former firm and L.E. that their reinstatement agreements were not determinative of whether the OLR would support or oppose Attorney Parks' reinstatement petition. We concur that agreements to pay restitution that are conditioned upon reinstatement are not ideal, but under the unique facts of this case, the terms should not preclude reinstatement.

5 No. 2016AP85-D

that Attorney Parks appears to have satisfactorily addressed the

concerns raised with regard to his satisfaction of (former)

SCR 22.29(4m). The OLR notes that Attorney Parks' former

colleague, Attorney Anthony O'Malley, now supports Attorney

Parks' reinstatement. The OLR thus concluded that Attorney

Parks has, to the satisfaction of the OLR, met his burden to

prove by clear, satisfactory, and convincing evidence that he

has met all of the criteria for reinstatement. Accordingly, the

OLR and Attorney Parks executed a stipulation pursuant to

SCR 22.30(5)(a) for Attorney Parks' reinstatement.

¶10 The parties further stipulated that the court should

impose the following conditions on Attorney Parks' reinstatement

to the practice of law:

 Attorney Parks must comply with his agreement to pay

L.E. a total of $4,500 in restitution. Under the

terms of his agreement, the remaining $3,500 is due

within one year of Attorney Parks' reinstatement.

 Attorney Parks must comply with his agreement to pay his former firm a total of $10,000 in restitution.

Under the terms of the agreement, the remaining $7,000

is due within one year of Attorney Parks'

reinstatement.

 Attorney Parks must comply with his agreement to pay

the OLR the costs of his discipline proceeding and his

6 No. 2016AP85-D

first reinstatement petition proceeding, by continuing

to pay the OLR at least $500 monthly.5

The OLR states that it will not seek an assessment of costs for

this second reinstatement proceeding.

¶11 The parties' joint stipulation for Attorney Parks'

reinstatement is now before us for our review. This is one of

the first reinstatement petitions submitted to the court by

stipulation under SCR 22.30(5)(a), effective January 1, 2021.6

The new reinstatement provisions permit the court to consider a

reinstatement petition by stipulation when, as here, the OLR

concludes, upon investigation, that the petitioner has

demonstrated, to the director's satisfaction, all of the

reinstatement criteria. SCR 22.3057 and SCR 22.29(4). This

In the underlying disciplinary case Attorney Parks was 5

ordered to pay costs totaling $42,226.26. In the unsuccessful first reinstatement proceeding, Attorney Parks was ordered to pay an additional $6,370.43 in costs. He has entered into a payment plan with the OLR and is current with his monthly payments. 6Effective January 1, 2021, substantial changes were made to the rules pertaining to lawyer disciplinary procedures, including the reinstatement rules, SCR 22.29 through 22.33. See S. Ct. Order 19-06, 19-07, 19-08, 19-09, 19-10, 19-11, and 19-12, 2020 WI 62 (issued June 30, 2020, eff. Jan. 1, 2021). 7 SCR 22.305 (Standard for Reinstatement) provides:

At all times relevant to the petition, the petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:

(1) That he or she has the moral character to practice law in Wisconsin. (continued) 7 No. 2016AP85-D

court then considers the petition and stipulation without the

appointment of a referee and we may approve the stipulation and

reinstate the petitioner's law license; we may reject the

stipulation and refer the petition to a referee for a hearing;

or we may direct the parties to consider modifications to the

stipulation. SCR 22.30(5)(b).

¶12 As to Attorney Parks' representations in his

reinstatement petition, the record - including several favorable

character references - supports the parties' stipulation that

those representations are substantiated: Attorney Parks desires

to have his law license reinstated, SCR 22.29(4)(a); Attorney

Parks has not practiced law during the period of suspension,

engaging in volunteer service and working as a property manager

and a substitute teacher, SCR 22.29(4)(b); Attorney Parks has

complied fully with the terms of his order of suspension and

will continue to comply until he is reinstated, SCR 22.29(4)(c);

Attorney Parks has maintained competence and learning in the law

by attendance at identified educational activities, as evidenced

(2) 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.

(3) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to (m) and 22.29(5), are substantiated.

(4) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26.

8 No. 2016AP85-D

by a June 17, 2021 memorandum from the Board of Bar Examiners

confirming his CLE and EPR compliance, SCR 22.29(4)(d); Attorney

Parks' conduct since his suspension has been exemplary and

beyond reproach, SCR 22.29(4)(e); Attorney Parks has a proper

understanding of and attitude toward the standards that are

imposed upon members of the bar and will act in conformity with

those standards, SCR 22.29(4)(f); Attorney Parks can safely be

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 as a member of

the bar and as an officer of the courts, SCR 22.29(4)(g);

Attorney Parks has satisfactorily fully complied with the

requirements set forth in SCR 22.26, SCR 22.29(4)(h); if

reinstated, Attorney Parks intends to return to the practice he

left when his license was suspended, practicing with one other

attorney, SCR 22.29(4)(j); and Attorney Parks satisfactorily

described his business activities during his suspension, engaging in community service, serving as a substitute teacher

and as a property manager, SCR 22.29(4)(k).

¶13 As discussed above, Attorney Parks has now also

satisfactorily made restitution to or settled all claims of

persons injured or harmed by his misconduct, thereby resolving

our concerns about his compliance with (former) SCR 22.29(4m)

and (former) SCR 22.31(a), SCR 22.29(4)(m).

¶14 Based on the stipulation and noting that the record contains no evidence to the contrary, we conclude that Attorney 9 No. 2016AP85-D

Parks has the moral character to practice law in Wisconsin,

SCR 22.305(1); his resumption of the practice of law will not be

detrimental to the administration of justice or subversive of

the public interest, SCR 22.305(2); his representations in his

petition, including the representations required by

SCR 22.29(4)(a) to (m) and SCR 22.29(5), are substantiated,

SCR 22.305(3); and he has complied fully with the terms of the

suspension orders and with the requirements of SCR 22.26,

SCR 22.305(4). Accordingly, we accept the parties' stipulation

pursuant to SCR 22.30(5)(b), and we reinstate Attorney Parks'

license to practice law in Wisconsin, effective the date of this

order, upon the stipulated conditions.

¶15 IT IS ORDERED that the petition for reinstatement of

Daniel Parks is granted, effective the date of this order, upon

the following conditions:

 Daniel Parks shall comply with his agreement to pay

L.E. a total of $4,500 in restitution. Under the

terms of his agreement, the remaining $3,500 is due within one year of Daniel Parks' reinstatement.

 Daniel Parks shall comply with his agreement to pay

his former firm a total of $10,000 in restitution.

Under the terms of the agreement, the remaining $7,000

is due within one year of Daniel Parks' reinstatement.

 Daniel Parks shall comply with his agreement to pay

the Office of Lawyer Regulation the costs of his

discipline proceeding and his first reinstatement

10 No. 2016AP85-D

petition proceeding, by continuing to pay the Office

of Lawyer Regulation at least $500 monthly.

¶16 IT IS FURTHER ORDERED that Daniel Parks' failure to

abide by the aforementioned conditions, absent a showing of

inability to pay, may result in the further suspension of Daniel

Parks' license to practice law in Wisconsin.

¶17 IT IS FURTHER ORDERED that no costs will be imposed in

connection with this reinstatement proceeding.

11 No. 2016AP85-D