Dr. Jekyll Returns To Practice
The Wisconsin Supreme Court has reinstated one attorney and denied reinstatement to another, both of whom were suspended from practice due to medical incapacity.
In the case where reinstatement was denied, the attorney had an substance abuse problem.
The referee had found
The referee noted that Attorney Schlieve has not practiced law since 1998, and during that time she has not been employed outside the home. She has primarily spent her time caring for her son, who has medical issues. The referee noted that in addition to caring for her son, Attorney Schlieve has been active in her church, in dog rescue efforts, and in other community affairs. In recent times, she has been working with a friend to establish two startup businesses, one offering tea party services and one offering wedding planning services.
The referee noted that Attorney Schlieve has earned a significant number of continuing legal education (CLE) credits and has attended a significant amount of coursework, all online. The referee noted that Attorney Schlieve provided a printout from the State Bar listing CLE attendance and dues payments from the early 1990s through January 2014. The referee said it was impossible to determine precisely what courses Attorney Schlieve had actually attended, since all were online courses…
The referee said that Ms. Albert’s testimony about Attorney Schlieve’s participation in the WisLAP program raised a number of serious questions. The referee said that after Attorney Schlieve’s second positive test for codeine, and after Ms. Albert had informed Attorney Schlieve that WisLAP would continue with monitoring efforts through the reinstatement hearing but not thereafter, Attorney Schlieve contacted her doctor’s office and withdrew the medical release in favor of WisLAP. Because of the positive drug screen in February of 2014, WisLAP again requested a list of Attorney Schlieve’s current medications and the dates they were first prescribed. When the list was not forthcoming, WisLAP staff followed up with the doctor and was informed that there was no medical authorization from the patient.
Judge Abrahamson dissented and would reinstate with conditions.
Reinstatement was granted in this matter in which the attorney has been suspended since 1989
Attorney Linehan’s petition for voluntary revocation of his license to practice law stated that he was the subject of an investigation of possible misconduct with respect to his representation of a client “and is also the subject of an investigation involving possible misconduct and medical incapacity due to chronic substance abuse.” Attorney Linehan acknowledged that he could not successfully defend against the allegations of misconduct. As additional background, he stated that he had been afflicted with a longstanding, chronic sickness or disease involving several forms of substance abuse, which sickness or disease was a factor which contributed to the conduct resulting in the misconduct allegations that were the subject of investigations by the Board of Attorneys Professional Responsibility (BAPR), the predecessor in interest to the Office of Lawyer Regulation (OLR). The petition for voluntary revocation stated that, despite both inpatient and outpatient treatment, Attorney Linehan continued to be afflicted by chronic and significant problems involving substance abuse. Attorney Linehan stated that he believed he was unable to obtain the long-term treatment needed to effectively recover from his medical condition and still practice law at the same time. He stated that his desire to voluntarily surrender his license to practice law was based in part upon his belief that he had a medical incapacity, and that he desired to obtain further treatment for that condition.
The referee found
In reaching this [favorable] conclusion, the referee noted that “[t]his case presents the Jekyll/Hyde paradox in the life and times of Daniel W. Linehan, who has been ‘characterized as sane when he is clean and sober and as insane when he is not.'” The referee found that Attorney Linehan has been afflicted with chronic alcohol and substance abuse since approximately age 15. In the 1980s, prior to his consensual license revocation, Attorney Linehan received both inpatient and outpatient treatment but exhibited a tendency for relapses of his chronic substance abuse. The referee found that the chronic substance abuse substantially interfered with Attorney Linehan’s ability to conduct his law practice. The referee noted that after the revocation of his law license, Attorney Linehan spent time in the Dane County jail on a drunk driving conviction and his driver license was revoked.
The referee further noted that in the 1990s, Attorney Linehan worked as a clerk for a law firm in Minnesota and as a paralegal with the Hennepin County Attorney’s Office in Minneapolis. The referee found that this employment was not deemed contrary to the Minnesota Rules of Professional Conduct. While Attorney Linehan remained relatively clean and sober between 1992 and 1995, he suffered a relapse in 1995. He was terminated from his job at the Hennepin County Attorney’s Office in the spring of 1998 due to substance abuse issues. Attorney Linehan filed petitions for the reinstatement of his Wisconsin law license in 1996 and 1998 but was not honest about the status of his substance abuse problems and decided to withdraw both petitions.
In 1998, Attorney Linehan was charged with theft of a motor vehicle and aggravated drunk driving in Minnesota. He was convicted and placed on probation. Around 1998, Attorney Linehan began treating with Dr. Roger Johnson, a psychiatrist. Dr. Johnson remained Attorney Linehan’s main mental health treatment provider until the doctor retired in 2010. Dr. Johnson diagnosed Attorney Linehan with major depression and treated him with medication. With the doctor’s support, Attorney Linehan applied for Social Security Disability benefits, which were awarded around 1998.
In December of 1998, Attorney Linehan was arrested for intoxication and being in possession of a stolen automobile. The investigation revealed that he had burglarized his neighbor’s residence, stole credit cards and their vehicle, and made charges with the credit cards without proper consent. He was charged with eight criminal counts. Because he was already on probation, he was incarcerated in the Sherburne County jail from December of 1998 until February of 1999. In January of 1999, he was also charged with forgery involving a $3,000 check. Attorney Linehan entered into a plea agreement on the charges in February of 1999 and was convicted and sent to prison. Around June 1, 1999, he was released on an ankle bracelet monitoring program. He suffered a relapse and was arrested and sent back to prison for violating the terms of his release. He was released from custody in July of 2000.
In 2003, Attorney Linehan was convicted of operating after revocation in Wisconsin. In 2002 and 2003, he was sporadically drinking and using drugs. He engaged in sporadic drinking and drug use again between 2006 and 2008. In December of 2009, he was taken into custody for an emergency detention when a friend called police to report that Attorney Linehan was very intoxicated and was making threats to harm himself or others. He was admitted to Mendota Mental Healthcare Center. Following a detention hearing, the court found the least restrictive level of care was on an outpatient basis, although the court expressed concern over threats that had been made. The court ordered daily breathalyzer sampling to ensure that Attorney Linehan remained sober and, if he could not, he would be taken into custody.
The court
We agree with the referee that, although this court’s cursory 1989 order revoking Attorney Linehan’s license to practice law by consent did not explicitly state that the revocation was due to a medical incapacity, the petition for voluntary revocation clearly identified medical incapacity as the primary driving force behind Attorney Linehan’s decision to relinquish his law license. Accordingly, we deem it appropriate to treat his petition for reinstatement of his license as having been filed under SCR 22.36. We further conclude that the referee’s findings support a determination that Attorney Linehan has met his burden under SCR 22.36(6) to establish by clear, convincing, and satisfactory evidence that his medical incapacity is removed and that he is fit to resume the practice of law. We agree that conditions on Attorney Linehan’s license to practice law are necessary to ensure that he continues to receive appropriate treatment. Finally, we deem it appropriate to require Attorney Linehan to pay the full costs of this proceeding, $15,714.12.
(Mike Frisch)