Office of Lawyer Regulation v. Gamiño

2011 WI 42, 334 Wis. 2d 279
CourtWisconsin Supreme Court
DecidedJune 15, 2011
DocketNo. 2006AP2430-D
StatusPublished
Cited by1 cases

This text of 2011 WI 42 (Office of Lawyer Regulation v. Gamiño) 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. Gamiño, 2011 WI 42, 334 Wis. 2d 279 (Wis. 2011).

Opinion

PER CURIAM.

¶ 1. We review the recommendation of the referee, Timothy L. Vocke, that Attorney Carlos A. Gamiño's petition seeking the reinstatement of his license to practice law in Wisconsin be granted. No appeal has been filed so we review this matter pursuant to SCR 22.17(2).1 After consideration of the referee's report and the entire record, we agree that Attorney Gamiño's petition for reinstatement should be granted, but we impose conditions on his reinstatement as set forth herein. We direct that the costs of the reinstatement proceeding, which total $7,827.83 as of December 13, 2010, be paid by Attorney Gamiño.

¶ 2. Attorney Gamiño was licensed to practice law in Wisconsin in 1997. His law license was suspended for six months effective January 24, 2006, because he was found to have engaged in a sexual relationship with a client in one matter and a sexual relationship with a juvenile client's mother in another matter. See In re Disciplinary Proceedings Against Gamiño, 2005 WI 168, [281]*281286 Wis. 2d 558, 707 N.W.2d 132. He also made false representations about his conduct to a court and to the Office of Lawyer Regulation (OLR) investigators in that matter. Attorney Gamiño was publicly reprimanded on April 28, 2006, for failure to act with reasonable diligence, failure to immediately refund unearned fees, contacting a client after receiving notice that successor counsel had been retained in one matter, and for a trust account violation. See In re Disciplinary Proceedings Against Gamiño, 2006 WI 32, 290 Wis. 2d 1, 712 N.W.2d 873. Attorney Gamiño's petition for reinstatement was granted by this court on September 5, 2007. See In re Disciplinary Proceedings Against Gamiño, 2007 WI 115, 305 Wis. 2d 1, 737 N.W.2d 662. In 2008 Attorney Gamiño was suspended for 18 months for five counts of misconduct relating to his handling of a family law matter in which he failed to obtain information essential to ensure an equitable division of property in a divorce proceeding. See In re Disciplinary Proceedings Against Gamiño, 2008 WI 107, 314 Wis. 2d 514, 753 N.W.2d 521. This misconduct was committed in 2004 and 2005.

¶ 3. On April 15, 2010, Attorney Gamiño filed a petition seeking reinstatement of his license to practice law. The OLR opposed the petition. Public hearings on the reinstatement petition were held on September 20, November 2, and November 9, 2010. On November 23, 2010, the referee filed a report recommending the court grant the petition for reinstatement.

¶ 4. Supreme court rule 22.31(1) provides the standards to be met for reinstatement.2 Specifically, the [282]*282petitioner 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 order of suspension. In addition to these requirements, SCRs 22.29(4)(a) through (4m)3 provide additional requirements that a petition for reinstatement must show. All of these additional requirements are effectively incorporated into SCR 22.31(1).

[283]*283¶ 5. When we review a referee's report and recommendation, we 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 Eisenberg, 2004 WI 14, ¶ 5, 269 Wis. 2d 43, 675 N.W.2d 747.

¶ 6. The OLR did not dispute that Attorney Gamiño had met several of the criteria needed for reinstatement. Attorney Gamiño desires to have his license reinstated, see SCR 22.29(4)(a); Attorney Gamiño has not practiced law during the period of suspension, see SCR 22.29(4)05); Attorney Gamiño has complied fully with the terms of the order of suspension and will continue to comply with them until his license is reinstated, see SCR 22.29(4) (c);4 Attorney Gamiño has main[284]*284tained competence and learning in the law by attendance at identified educational activities, see SCR 22.29(4) (d); Attorney Gamiño has stated his proposed use of his license if reinstated, see SCR 22.29(4)(j); and Attorney Gamiño provided a full description of all of his business activities during the period of suspension, see SCR 22.29(4)(k).

¶ 7. During his suspension, Attorney Gamiño worked at Gentile Automotive Group in Racine as a finance director. He also continued to manage Gamiño Enterprises, a real estate rental business owned by the Gamiño family. During his day off he is the primary caregiver to his four young children. There appeared to be no dispute that Attorney Gamiño established compliance with the requirements set forth in SCR 22.26. See SCR 22.29(4)(h).

¶ 8. The OLR opposed Attorney Gamiño's petition on the grounds that he had failed to meet several of the criteria for reinstatement. Attorney Gamiño's license was suspended for professional misconduct based on the manner in which he jointly represented a married couple in a divorce proceeding that resulted in a divorce agreement that was patently unfair to the wife, N.B. Subsequently, N.B. filed for bankruptcy and eventually obtained a judgment against Attorney Gamiño for some $13,000.

¶ 9. The OLR opposed Attorney Gamiño's reinstatement based on its concerns regarding: (1) whether Attorney Gamiño obtained the appropriate CLE-EPR credits required by the court and as a condition to reinstatement; (2) whether Attorney Gamiño had misrepresented his financial status in regard to payment of the bankruptcy estate claim; and (3) the OLR's opinion that Attorney Gamiño had not shown any remorse as to [285]*285N.B. These factors are all relevant to whether Attorney Gamiño satisfied SCR 22.29(4) (e) (requiring Attorney Gamiño to establish that his conduct since the suspension or revocation has been exemplary and above reproach), SCR 22.29(4) (f) (requiring Attorney Gamiño to establish that he has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards), SCR 22.29(4)(g) (requiring Attorney Gamiño to establish that he 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 court), and SCR 22.29(4m) (requiring that Attorney Gamiño has made restitution to or settled all claims of persons injured or harmed by his misconduct, including reimbursement to the Wisconsin Lawyers' Fund for Client Protection for all payments made from that fund, or, if not, Attorney Gamiño's explanation of his failure or inability to do so).

¶ 10. The referee considered testimony and evidence on each of these points. First, with respect to the question of the number of CLE credits the referee acknowledged that Attorney Gamiño had not filed appropriate forms with the Board of Bar Examiners (BBE), but testimony from BBE staff indicated Attorney Gamiño had, as of the date of the evidentiary hearing, completed in excess of the number of credits he was required to take to satisfy this court's conditions set forth in its prior decision and those needed for reinstatement.

¶ 11.

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2011 WI 42, 334 Wis. 2d 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-lawyer-regulation-v-gamino-wis-2011.