Office of Lawyer Regulation v. Daniel Parks ( 2021 )

2021 WI 10SUPREME 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.
DISCIPLINARY PROCEEDINGS AGAINST PARKS
OPINION FILED: February 11, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam. HAGEDRON, J., dissents, joined by REBECCA GRASSL
BRADLEY, J.
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there were briefs filed by
Daniel Parks, Peyton B. Engel, and Hurley, Burish & Stanton,
S.C., Madison.
For the complainant-respondent, there was a brief filed by
Brenda K. Sunby, Wausau.
2021 WI 10NOTICE
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
Complaint-Respondent, FEB 11, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Daniel Parks,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
¶1 PER CURIAM. We review a report filed by Referee John
Nicholas Schweitzer, recommending that the court reinstate
Attorney Daniel Parks' license to practice law in Wisconsin.
After careful review, we disagree with the recommendation and we
deny Attorney Parks' reinstatement petition. We direct Attorney
Parks to pay the full costs of this reinstatement proceeding,
which are $6,370.43 as of July 16, 2020.
¶2 Attorney Parks was admitted to the practice of law in
Wisconsin in September 1991. In 2013, Attorney Parks announced
he was leaving the law firm where he had been employed for 18
No. 2016AP85-D
years. Following Attorney Parks' departure, the law firm filed
a grievance with the Office of Lawyer Regulation (OLR) stating,
among other things, that it had discovered that Attorney Parks
had performed unauthorized legal work "on the side" ("non-firm
work") while employed by the firm. An investigation ensued and
in 2016, the OLR filed a disciplinary complaint against Attorney
Parks, alleging 19 counts of professional misconduct and seeking
a two-year license suspension.
¶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. We suspended
Attorney Parks' law license for 14 months for:
 Earning fees from non-firm legal work while employed
by the firm, in violation of Supreme Court Rule
(SCR) 20:8.4(c) and SCR 20:8.4(f);
 Arranging for two clients to perform work for him in
exchange for a reduction of legal fees and otherwise
reducing attorney fees without the firm's permission,
in violation of SCR 20:8.4(c) and SCR 20:8.4(f);
 Accepting an unauthorized $5,000 "gift" from two
clients in violation of SCR 20:8.4(c) and
SCR 20:8.4(f);
1 The OLR twice amended its complaint, dismissing five
counts.
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No. 2016AP85-D
 Working on client files on an unsecured offsite
computer belonging to another person, in violation of
SCR 20:1.6(a); and
 Obtaining two signatures on a "release" designed to
limit Attorney Parks' liability, without properly
clarifying his role in the matter in violation of
SCR 20:8.4(c).2
¶4 In January 2020, Attorney Parks filed a petition for
reinstatement.3 The OLR opposed Attorney Parks' petition for
three primary reasons: (1) the OLR had learned of an action
involving Attorney Parks' insurance license; (2) the OLR had
concerns about aspects of Attorney Parks' 2018 tax returns; and
(3) the OLR argued that Attorney Parks' failure to reimburse his
2 We dismissed five counts of alleged misconduct. Several
of these counts alleged improper dealings with a friend and
client, C.D., involving a personal loan, SCR 20:1.8(a) and (b);
providing her with a form for a will, SCR 20:1.7(a)(2);
transferring the title of a vehicle, SCR 20:8.4(c); arranging
for a rent payment, SCR 20:8.4(c); and failure to clarify the
scope of his representation of two relatives of C.D.,
SCR 20:1.7(a)(2). A claim of noncooperation with the OLR,
SCR 22.03(2) and (6), enforceable via SCR 20:8.4(h), was also
dismissed.
3 By order effective January 1, 2021, this court amended a
number of supreme court rules pertaining to lawyer disciplinary
procedures, including rules governing reinstatement from
disciplinary suspension, SCR 22.29 through 22.33. 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). The rules amended
pursuant to that order apply to reinstatement proceedings
commenced after January 1, 2021. Therefore, this reinstatement
proceeding is governed by the prior rules, in effect at the time
of the reinstatement petition.
3
No. 2016AP85-D
former firm and two clients reflected adversely on his request
for reinstatement.
¶5 On May 29, 2020, the parties filed a partial
stipulation regarding Attorney Parks' insurance license. The
referee conducted an evidentiary hearing on the reinstatement
petition in June 2020. On June 24, 2020, the referee filed a
report recommending that this court grant Attorney Parks'
reinstatement petition and impose the costs of the reinstatement
proceeding on Attorney Parks. Neither party appealed from the
referee's recommendation so we consider this matter pursuant to
SCR 22.33(3).4
¶6 The standards that apply to a petition for
reinstatement after a disciplinary suspension are set forth in
SCR 22.31(1).5 The petitioning attorney must demonstrate by
4 SCR 22.33(3) provides: "If no appeal is timely filed, the
supreme court shall review the referee's report, order
reinstatement, with or without conditions, deny reinstatement,
or order the parties to file briefs in the matter."
5 SCR 22.31(1) provides the petitioner has the burden
of demonstrating, by clear, satisfactory, and
convincing evidence, all of the following:
(a) That he or she has the moral character to
practice law in Wisconsin.
(b) 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.
(c) 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
No. 2016AP85-D
clear, satisfactory, and convincing evidence that the attorney
has the moral character necessary to practice law in this state,
that the attorney's 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 or revocation order and the
requirements of SCR 22.26. In addition, SCR 22.31(1)
incorporates the statements that a petition for reinstatement
must contain pursuant to SCR 22.29(4)(a)-(k) and (4m).6 Thus,
(d) 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.
6 SCR 22.29(4)(a)-(k) and (4m) provides that a petition
for reinstatement shall show all of the following:
(a) The petitioner desires to have the
petitioner's license reinstated.
(b) The petitioner has not practiced law during
the period of suspension or revocation.
(c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will continue to comply with them until the
petitioner's license is reinstated.
(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.
(e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.
(f) The petitioner 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.
5
No. 2016AP85-D
the petitioning attorney needs to demonstrate that the required
representations in the reinstatement petition are substantiated.
¶7 On review, we accept a referee's findings of fact
unless they are clearly erroneous. We review a referee's legal
conclusions, including whether the attorney has satisfied the
criteria for reinstatement, on a de novo basis. See In re
Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334
Wis. 2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings
Against Gral, 2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168.
We benefit from the referee's findings and conclusions,
particularly when, as here, the referee has provided us with
such a thoughtful and well-structured report. However, we are
(g) The petitioner 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.
(h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license
if reinstated.
(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.
(4m) The petitioner has made restitution to or
settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to
the Wisconsin lawyers' fund for client protection for
all payments made from that fund, or, if not, the
petitioner's explanation of the failure or inability
to do so.
6
No. 2016AP85-D
not bound by the referee's recommendation or by the OLR's
restitution policy. In re Disciplinary Proceedings Against
Nussburger, 2009 WI 103, 321 Wis. 2d 576, 775 N.W.2d 525;
see also In re Disciplinary Proceedings Against Langer, 213
Wis. 2d 125, 569 N.W.2d 465 (1997). The ultimate determination
of who may practice law in Wisconsin remains with this court.
Here, we accept the referee's findings, but we reach a different
conclusion of law with respect to SCRs 22.29(4)(e),(4m) and
22.31(1)(a).
¶8 The OLR did not dispute and the referee found that
Attorney Parks satisfied a number of the requirements for
reinstatement. He demonstrated that he desires to have his
license reinstated, SCR 22.29(4)(a); that he has not practiced
law during the period of his suspension, SCR 22.29(4)(b); that
he has complied fully with the terms of the order of suspension
and will continue to comply with them until his license is
reinstated, SCR 22.29(4)(c);7 and that he has maintained
competence and learning in the law, SCR 22.29(4)(d).8 The
referee found that Attorney Parks fully complied with the
requirements set forth in SCR 22.26 as required by
7The referee observed that although Attorney Parks has not
paid off the costs of the underlying disciplinary proceeding, he
entered into and is complying with a payment plan.
8The Board of Bar Examiners filed a memorandum stating that
Attorney Parks "is currently in compliance with the court's CLE
and EPR requirements for reinstatement." The record reflects
Attorney Parks' successful completion of numerous continuing
legal education classes.
7
No. 2016AP85-D
SCR 22.29(4)(h); explained how he would use his license if
reinstated, SCR 22.29(4)(j); and outlined his activities during
his suspension, SCR 22.29(4)(k). We accept the referee's
findings and conclusions with respect to these criteria.
¶9 The more challenging questions involved whether
Attorney Parks has the moral character to practice law in
Wisconsin, as required by SCR 22.31(1)(a), and whether he met
his burden with respect to SCR 22.29(4)(e) (requiring that the
petitioner's conduct since the suspension has been exemplary and
above reproach); SCR 22.29(4)(f) (requiring that the petitioner
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 that
the petitioner 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). Another concern pertains to Attorney
Parks' obligation to make restitution to or settle all claims of
persons injured or harmed by petitioner's misconduct, including
reimbursement to the Wisconsin Lawyers' Fund for Client
Protection for all payments made from that fund, or, if not his
explanation of the failure or inability to do so.
SCR 22.29(4m). Failure to satisfy this criterion bears, in
turn, on whether a petitioner has the moral character to
practice law in Wisconsin. SCR 22.31(1)(a).
8
No. 2016AP85-D
I. THE INSURANCE LICENSE INVESTIGATION
¶10 The referee's findings with respect to the insurance
license matter derive from a partial stipulation executed by the
parties as well as evidence from the reinstatement hearing. In
1998, Attorney Parks was licensed by the Office of the
Commissioner of Insurance (OCI) as a Wisconsin resident
insurance intermediary, which authorized him to sell life, fixed
and variable annuities, accident and health insurance. To hold
this particular license, Wisconsin residents must maintain
active Financial Industry Regulatory Authority (FINRA) Series 6
or 7 Registration (FINRA Registration) and provide OCI with a
"Central Registration Depository" number.
¶11 The parties stipulated that Attorney Parks was duly
registered through April 2014. However, from April 2014 to
January 24, 2019, Attorney Parks did not have the appropriate
FINRA registration.9 Yet, in his 2017 insurance license renewal
application, Attorney Parks indicated that he was eligible to
continue to hold the Variable Life/Variable Annuity lines of
authority10 and he failed to timely notify the OCI that he was
ineligible to hold the Variable Life/Variable Annuity lines of
authority due to the termination of his FINRA registration.11 He
The OCI found that this oversight violated Wis. Stat.
9
§ 628.04(2) and Wis. Admin. Code § Ins. 6.59(4)(an).
The OCI found that this representation
10 violated Wis.
Admin. Code § Ins. 6.59(5)(b) and (d)l and 3.
The OCI found that this oversight violated Wis. Stat.
11
§ 628.08.
9
No. 2016AP85-D
also failed to disclose to the OCI the lawyer disciplinary
proceeding that was then pending against him, as well as his
business address.12 Ultimately, Attorney Parks and the OCI
resolved the insurance matter by stipulation. Attorney Parks
consented to the revocation of his insurance license, the
imposition of a forfeiture, and the condition that he not seek
relicensure in the future.
¶12 At the reinstatement hearing Attorney Parks was
questioned at length about this issue. Attorney Parks explained
that when he obtained and later renewed his insurance license he
sought guidance from an insurance professional, an individual
who was a financial advisor and a regional vice-president for
Primerica, for whom Attorney Parks worked at the time. Attorney
Parks explained that in 2014, Primerica informed its agents that
they considered estate planning to present a possible conflict
of interest with certain types of insurance; anyone who was
doing both should give one up. So, Attorney Parks opted to
resign from Primerica in April 2014 in order to continue his
estate planning practice.
¶13 Attorney Parks explained that as he was no longer
associated with an insurance company he knew he could no longer
The OCI found that this failure violated Wis. Stat.
12
§ 628.04(8) and Wis. Admin. Code §§ Ins. 6.59(5)(b), (d)(1), and
6.61(16)(a) and (d). Attorney Parks did not timely notify the
OCI within 30 days of the formal complaint filed by OLR on
January 12, 2016, or of this court's December 13, 2018 order.
The OCI found that this violated Wis. Stat. § 628.08 and Wis.
Admin. Code § Ins. 6.61(16)(a) and (d).
10
No. 2016AP85-D
sell insurance or act as an insurance agent and he ceased doing
so. It was not disputed that Attorney Parks has not engaged in
the insurance business since October 2012. Attorney Parks
testified that neither he nor the professional he consulted
realized that he should have reported the termination of his
appointment with Primerica to the OCI.
¶14 In 2017, Attorney Parks decided to renew his insurance
license in order to maintain a hard-earned credential. He
stated that he reviewed the renewal application with the
individual mentioned above, and testified that neither of them
interpreted a question on the license application as requiring
him to report the then-pending OLR action. He testified that
neither of them realized that because an insurance license in
Wisconsin has a variable annuity component that remains intact
even with a loss of FINRA Registration, Attorney Parks was
impliedly asserting in his renewal application that he was still
eligible to sell variable life and variable annuity products.
The referee was satisfied with Attorney Parks' explanation and
found that these violations were not intentional.
¶15 As the referee observed, the OCI matter is relevant
not for the violations per se, but rather as they inform whether
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 the standards," and whether 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
11
No. 2016AP85-D
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)(f) and (g). The referee noted that this incident
occurred before Attorney Parks' law license suspension, and that
Attorney Parks admitted that he bore the ultimate responsibility
for his actions. The referee found Attorney Parks' testimony
credible and opined that by obtaining and relying on
professional advice, Attorney Parks exhibited appropriate
judgment and sought to act properly. The referee commented that
his errors were "greatly mitigated by his genuine attempts to
get it right."
¶16 The referee then considered Attorney Parks' failure to
fully disclose to the OCI the scope of his attorney misconduct.
Specifically, in his answer to the OCI's complaint, Attorney
Parks admitted having been found to have committed eight counts
of professional misconduct. However, he denied the remaining
characterizations in the paragraph, i.e. that he was found to
have committed eight counts of misconduct "including acts of
dishonesty, fraud, deceit or misrepresentation against a
client."
¶17 The referee acknowledged the OLR's legitimate concern
that "this appears to be an attempt to minimize his culpability,
which would cast doubt on his truthfulness, his understanding of
his responsibilities, and his fitness to be consulted."
Attorney Parks took the position that that not all of the eight
counts of professional misconduct involved violations of
SCR 20:8.4(c) (i.e. acts of dishonesty, fraud, deceit or
12
No. 2016AP85-D
misrepresentation against a client). So, he reasoned that the
phrase "eight counts of professional misconduct as an attorney,
including acts of dishonesty, fraud, deceit or misrepresentation
against a client" was "technically" inaccurate. The referee
deemed Attorney Parks' explanation credible and concluded that
he satisfied SCRs 22.29(4)(f) and (g) and that the OCI matter
should not preclude his reinstatement to the practice of law.
We accept the referee's findings and conclusions with respect to
this matter.
II. 2018 TAX RETURNS
¶18 Shortly before the reinstatement hearing, the OLR
expressed concern about a deduction that Attorney Parks claimed
on his 2018 tax return. At the hearing, Attorney Parks' tax
preparer testified and opined that the deduction was
appropriate, and noted that a different tax preparer had claimed
the same deduction the previous year.
¶19 Again, the issue is not whether the deduction was
improper, per se, but whether it reflects adversely on Attorney
Parks' ability to demonstrate that his conduct has been
exemplary and above reproach. SCR 22.29(4)(e). The referee
noted that the OLR presented no testimony to contradict the tax
preparer's opinion. The referee noted favorably that Attorney
Parks not only relied on his tax preparer's advice, but also
specifically asked about that item while preparing his tax
returns. The referee concluded that Attorney Parks' handling of
the tax question should not preclude Attorney Parks'
13
No. 2016AP85-D
reinstatement. We accept the referee's findings and conclusion
with respect to the tax question.
III. FAILURE TO REIMBURSE FIRM AND CLIENTS
¶20 We turn to the issue that causes us to reject this
reinstatement petition. The OLR suggests that Attorney Parks'
failure to reimburse his former law firm for legal fees he
diverted from it, or to reimburse certain clients for an
improperly solicited "gift," should preclude his reinstatement.13
To be clear, the OLR did not seek restitution in the underlying
disciplinary proceeding, citing its restitution policy.14 The
underlying disciplinary referee did not recommend restitution
and we did not order it. Parks, 2018 WI 110, ¶1.
¶21 However, the OLR now contends that Attorney Parks'
failure to voluntarily reimburse the firm and these clients
reflects "a degree of potential callousness or lack of
responsibility for his conduct." The OLR suggests this omission
13 The OLR indicated that at least one member of the
former firm thought Attorney Parks should have repaid the
firm.
In 2007, the OLR formulated a policy whereby it seeks
14
restitution only under the following circumstances:
 The grievant's or respondent's rights in a collateral
proceeding will not likely be prejudiced;
 The funds to be restored do not constitute incidental or
consequential damages;
 The funds to be restored were in the respondent lawyer's
direct control; and
 There is a reasonably ascertainable amount.
See, e.g., In re Disciplinary Proceedings Against Nussburger,
2009 WI 103, 321 Wis. 2d 576, 775 N.W.2d 525.
14
No. 2016AP85-D
reflects adversely on Attorney Parks' conduct since his
suspension, SCR 22.29(4)(e), and may not wholly satisfy
SCR 22.29(4m).15 The OLR asserted that "at the least that Parks
should satisfactorily explain to the referee at the
reinstatement proceeding why despite a finding of dishonesty by
the Court, Parks has apparently made no effort to pay or repay
the firm" or the others affected by his misconduct.
¶22 The referee analyzed this issue carefully and
concluded that Attorney Parks' failure to reimburse the firm and
his former clients should not be the basis for denying his
petition for reinstatement. We disagree.
¶23 In the underlying disciplinary proceeding, Attorney
Parks admitted that he performed legal work "on the side" for
over 30 clients and that he collected at least $13,875 in fees
that he deposited into his personal account. Although Attorney
Parks insisted that he had discretion over the cases he accepted
and that he was authorized to reduce fees, for example to
facilitate a settlement that might otherwise fail, the firm's
partners categorically denied that the firm had ever authorized
him to work "on the side" or to unilaterally reduce legal fees.
The OLR's response references a potential failure to
15
satisfy SCR 22.29(4)(k). This appears to be a scrivener's
error. Subparagraph (k) pertains to a lawyer's activities
during suspension. Supreme Court Rule 22.29 (4m) requires a
petitioner to have made "restitution to or settled all claims of
persons injured or harmed by petitioner's misconduct, including
reimbursement to the Wisconsin lawyers' fund for client
protection for all payments made from the fund, or, if not, the
petitioner's explanation for the failure or inability to do so."
15
No. 2016AP85-D
The underlying record was replete with mutual accusations of
lying; many of the disciplinary issues turned on credibility
assessments. At the end of the day, neither the referee nor
this court was persuaded by Attorney Parks' explanations. We
determined that he made unauthorized fee reductions, and/or
accepted services that benefitted him personally in exchange for
a reduction of legal fees, at the firm's expense. He was
disciplined, accordingly.
¶24 Attorney Parks was also accused of misconduct in his
dealings with C.D. and some of her relatives. C.D. was, at
various times, Attorney Parks' client, tenant, and personal
friend from the early 1990s until her death in 2013. She rented
a home from Attorney Parks and she lent him money. He served as
her power of attorney, took her to medical appointments, and
visited her. In her will she partially forgave the loan she had
made him and she bequeathed to him a number of personal
household items. Attorney Parks was also friends with C.D's
daughter, L.E., and L.E.'s husband, T.E. Attorney Parks
represented T.E. in a personal injury case, wrote two wills for
the couple, and was the best man at their wedding.
¶25 The reimbursement dispute at issue here stems from
T.E.'s personal injury case. The firm's standard contingency
fee agreement provided that the firm would receive 33 percent of
any recovery for attorney fees. Around the time of settlement,
Attorney Parks unilaterally reduced the attorney fees from 33
percent to 25 percent. The firm received $12,000 less than it
should have for the legal representation of T.E.
16
No. 2016AP85-D
¶26 During this representation Attorney Parks repeatedly
mentioned to T.E. and L.E. that clients sometimes gave him a
"bonus." When the couple arrived to collect their settlement
money, Attorney Parks asked about "his $5,000 bonus." L.E.
wrote a $5,000 check and handed it to Attorney Parks. He asked
that she write "gift" on the memo line, which she did.
¶27 Although Attorney Parks has maintained this was a
gift, neither this court nor the referee in the underlying
disciplinary case was persuaded. The referee noted that the
couple had little money at this time, and found that they felt
compelled to give Attorney Parks the requested bonus. The
referee found that the "gift" was not the couple's idea; they
felt they needed to pay it to receive their settlement. We
agreed and we ruled that by this conduct, Attorney Parks
violated SCR 20:8.4(c) and SCR 20:8.4(f).
¶28 At his reinstatement hearing, Attorney Parks was asked
why he never repaid his former law firm the funds that he
improperly diverted from it. Attorney Parks responded that he
not been ordered to do so, he'd had no communication with the
firm since the underlying disciplinary hearing, and the firm had
not asked for reimbursement. Similarly, when asked why he had
not repaid L.E. the $5,000 "gift" that was the basis of her
17
No. 2016AP85-D
grievance against him, Attorney Parks responded that she had
never asked for it to be repaid.16
¶29 The referee acknowledged that these were "not the most
satisfying answers" to address what "might be considered
'ethical' or 'moral' obligations." The referee, however, was
willing to accept that the absence of a restitution order in the
underlying disciplinary case "surely had a reasoned basis, which
should be accepted" and concluded that Attorney Parks' failure
to make restitution in the absence of a restitution order should
not preclude his reinstatement.
¶30 We disagree. The requirement to make restitution in
SCR 22.29(4m) may include amounts due to those harmed by the
lawyer's misconduct, even if restitution is not expressly
ordered in the original disciplinary proceeding. In re
Disciplinary Proceedings Against Woodard, 2012 WI 41, 340
Wis. 2d 248, 812 N.W.2d 511. On occasion we have ordered, as a
condition of practice, that a lawyer make restitution payments
after reinstatement from a license suspension, even when
restitution was not ordered in the underlying disciplinary
proceeding. Id. In Woodward, for example, shortly before the
16In his report, the referee noted that L.E. was present at
the reinstatement hearing, which was open to the public. The
referee noted that "somewhat ironically her only comment was to
wish Mr. Parks the best of luck in the future." L.E. was not a
witness and thus was not cross-examined by either party so there
is no additional context for her statement, which the referee
described as "surprising and mysterious." It is impossible on
this record to ascertain what L.E. meant by this comment.
18
No. 2016AP85-D
reinstatement hearing, the lawyer sent a former client a check
for $500 as "a full and final settlement" of an acknowledged
$1,500 debt. The client objected. We reinstated the lawyer's
law license but ordered the lawyer to reimburse the client in
full, as a condition of continued practice. Id.¶31 In this case, even if we were persuaded that Attorney
Parks had satisfied all reinstatement criteria, imposing a
restitution order as a condition of practice is not a viable
option; the precise amount of the obligations are difficult to
ascertain. As the OLR explained at the time, "witness accounts
differed and credibility uncertainties rendered the amounts at
issue not reasonably ascertainable." In any event, we deem
Attorney Parks' explanation for his failure to make any effort
to make restitution wholly inadequate to satisfy his burden to
demonstrate compliance with SCR 22.29(4)(e) and (4m). This
omission also causes us to conclude that he has not demonstrated
that he possesses the requisite moral character to practice law
in this state. See SCR 22.31(a).
¶32 We are under no obligation to reinstate an attorney
who has made no effort at all to make restitution to or settle
all claims of persons injured or harmed by his misconduct.
Lathrop v. Donohue, 10 Wis. 2d 230, 237, 102 N.W.2d 404, 408
(1960) (observing that the practice of law is not a right but a
privilege); In re Disciplinary Proceedings Against Hyndman, 2002
WI 6, ¶4, 249 Wis. 2d 650, 638 N.W.2d 293 (stating that a
petitioner seeking reinstatement does not enjoy a presumption of
rehabilitation upon the expiration of a specified term of
19
No. 2016AP85-D
suspension). Upon a showing that Attorney Parks has sought in
good faith to address the requirements of SCR 22.29(4m), we will
be more favorably disposed to a future reinstatement petition.
Although a petitioner typically must wait nine months before
seeking reinstatement after denial of a reinstatement petition,
in this case we exercise our discretion to reduce that time.
SCR 22.33(4); In re Disciplinary Proceedings Against Carroll,
2004 WI 19, 269 Wis. 2d 172, 675 N.W.2d 792. Attorney Parks may
seek reinstatement when he can demonstrate that he has addressed
SCR 22.29(4m).
¶33 Finally, it is our general practice to assess the full
costs of a reinstatement proceeding against the petitioning
attorney. See SCR 22.24(1m). The OLR's statement of costs
indicates that the costs of this proceeding are $6,370.43 as of
July 16, 2020. We find no basis to depart from our general
policy in this matter and we agree with the referee's
recommendation that we impose the full costs of the
reinstatement proceeding on Attorney Parks.
¶34 IT IS ORDERED that the petition for reinstatement of
Daniel Parks is denied.
¶35 IT IS FURTHER ORDERED that the requirement in
SCR 22.33(4) requiring a nine-month waiting period before filing
a subsequent reinstatement petition is waived. Daniel Parks may
seek reinstatement upon a showing that he has addressed
SCR 22.29(4m).
¶36 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Daniel Parks shall pay to the Office of Lawyer
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No. 2016AP85-D
Regulation the costs of this proceeding, which are $6,370.43 as
of July 16, 2020, or enter into a payment agreement plan with
the Office of Lawyer Regulation for the full payment of costs
over a period of time.
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No. 2016AP85-D.bh
¶37 BRIAN HAGEDORN, J. (dissenting). I would grant
Attorney Parks' petition for reinstatement.
¶38 Accordingly, I respectfully dissent.
¶39 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this dissent.
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No. 2016AP85-D.bh
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