2016 WI 39
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP1393-BA
COMPLETE TITLE: In the Matter of the Bar Admission
of Joshua E. Jarrett
Joshua E. Jarrett,
Petitioner,
v.
Board of Bar Examiners,
Respondent.
BAR ADMISSION OF JARRETT
OPINION FILED: May 18, 2016
SUBMITTED ON BRIEFS: February 24, 2016
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED: PROSSER, J. concurs, joined by BRADLEY, A.W., J.
and BRADLEY, R.G., J.
DISSENTED: ROGGENSACK, C. J. dissents, joined by ZIEGLER,
J. and GABLEMAN, J.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioner, there were briefs by Joshua E. Jarrett.
For the Board of Bar Examiners, there was a brief by
Jacquelynn B. Rothstein, Director & Legal Counsel.
2016 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. 2015AP1393-BA
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of the Bar Admission
of Joshua E. Jarrett
Joshua E. Jarrett, FILED
Petitioner,
MAY 18, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Board of Bar Examiners,
Respondent.
REVIEW of Board of Bar Examiners decision. Decision
reversed and remanded.
¶1 PER CURIAM. This is a review, pursuant to SCR
40.08(7), of the final decision of the Board of Bar Examiners
(Board) declining to certify that the petitioner, Joshua E.
Jarrett, has satisfied the character and fitness requirements
for admission to the Wisconsin bar set forth in SCR 40.06(1).
The Board's refusal to certify that Mr. Jarrett satisfied the
character and fitness requirements for admission to the
No. 2015AP1393-BA
Wisconsin bar was based primarily on Mr. Jarrett's conduct
following his second year in law school, when he committed
academic misconduct by misrepresenting law school grades and
information to a prospective employer. After careful review, we
reverse and remand the matter to the Board for further
proceedings.
¶2 We appreciate the Board's concern regarding this
candidate, and we appreciate the thorough investigation the
Board conducted into Mr. Jarrett's background and past conduct.
Mr. Jarrett's academic misconduct raised a significant question
about his fitness to practice law. The duty to examine an
applicant's qualifications for bar admission rests initially on
the Board, and this court relies heavily on the Board's
investigation and evaluation. In the final analysis, however,
this court retains supervisory authority and has the ultimate
responsibility for regulating admission to the Wisconsin bar.
See In re Bar Admission of Rippl, 2002 WI 15, ¶3, 250 Wis. 2d
519, 639 N.W.2d 553, and In re Bar Admission of Vanderperren,
2003 WI 37, ¶2, 261 Wis. 2d 150, 661 N.W.2d 27.
¶3 While we understand the Board's decision, we conclude
that the incidents the Board relied upon, while troubling, are
sufficiently offset by evidence of rehabilitation to warrant our
conclusion that Mr. Jarrett may be admitted to the practice of
2
No. 2015AP1393-BA
law in this state, albeit with conditions. Accordingly, we
reverse.
¶4 Mr. Jarrett grew up in Georgia. He attended Albany
State University, majoring in Criminal Justice and graduating in
2009. He participated in a prestigious summer internship with
the U.S. Department of State in Washington D.C., and then
returned to Georgia to become a police officer. After serving
successfully as a police officer for a year, Mr. Jarrett applied
and was accepted at the University of Wisconsin Law School.
¶5 Mr. Jarrett started law school in the fall of 2011.
As a first-year law student, Mr. Jarrett was accepted into the
Wisconsin Innocence Project criminal appeals clinic where he
performed well.
¶6 In 2012, Mr. Jarrett committed the misconduct that
eventually gave rise to this proceeding. The Board would later
make the following factual findings regarding the incident:
2. In the Summer of 2012 and as part of the
summer employment procurement process for law
students, Mr. Jarrett submitted a resume and an
unofficial transcript to the University of Wisconsin
Law School office responsible for on-campus
interviews. Through that process, Mr. Jarrett sought
employment with the New York City Law Department for
the Summer of 2013.
3. The resume and unofficial transcript that
Jarrett submitted to the New York City Law Department
were both false. The resume contained two falsehoods.
It showed Mr. Jarrett's grade point average (GPA) to
be 2.75, when it was actually 2.72. It also listed
him as a staff member of the Wisconsin Law Review,
3
No. 2015AP1393-BA
when, in fact, he was not a member. The unofficial
transcript listed three false grades for his
coursework. It indicated that he had "B" grades,
when, in fact, he had "B-" grades for all three
courses.
4. Thereafter, Mr. Jarrett sent an e-mail to the
New York City Law Department. In it, he explained
that the deadline date for the submission of his
employment materials was the same date upon which he
had been informed that he had not been chosen for Law
Review.
5. Determined to be "completely forthright" with
the New York City Law Department, Mr. Jarrett attached
an updated resume and unofficial transcript to the e-
mail noting that all the other information was current
and valid. However, Mr. Jarrett did not correct the
other falsehoods, namely the inflated grades and GPA.
Instead, this version of his transcript noted his GPA
as a 3.0, not the inflated 2.75 or the actual 2.72.
6. In that same e-mail to the New York City Law
Department, he continued to report incorrect grades.
Two grades were inflated from "B-'s" to "B's." Two
others were similarly inflated; one from a B- to a B+
and the other from a B to a B+.
7. A hearing regarding Mr. Jarrett's alleged
misconduct was held on September 7, 2012, before the
Academic Misconduct Hearing Committee of the
University of Wisconsin (Committee). On September 17,
2012, the Committee issued a written decision and
determined that Mr. Jarrett admitted to having
embellished his academic documents on two separate
occasions.
8. The Committee further found that although
Mr. Jarrett had admitted to violating the University
of Wisconsin's academic code of conduct by forging or
falsifying academic documents or records, the
seriousness of that offense did not seem to
immediately resonate with Mr. Jarrett. The Committee
4
No. 2015AP1393-BA
also sanctioned Mr. Jarrett by placing him on two
semesters of disciplinary probation.1
9. In his application for admission to the
Wisconsin bar, Mr. Jarrett admitted to inflating his
grades and misrepresenting his position on the
Wisconsin Law Review.
10. Mr. Jarrett did not disclose the actual
truth to the New York City Law Department about being
on Law Review, his grades, or his GPA.
11. Mr. Jarrett repeatedly cited feeling
enormous pressure as the primary reason for engaging
in his wrongful conduct.
12. Mr. Jarrett admitted that at the time of his
wrongful conduct he did not believe that he would get
caught for providing false information to the New York
City Law Department or that anyone would check to see
whether he was actually on Law Review.
¶7 Meanwhile, Mr. Jarrett's law school studies continued.
He continued to perform well working for the Wisconsin Innocence
Project, joined the University of Wisconsin Law School Moot
Court Board, competed in two moot court competitions, coached a
moot court team, participated in a Volunteer Income Tax
Assistance Clinic, held an unpaid summer law clerk position with
the Wisconsin Department of Revenue, and worked as an academic
advisor at a private student housing facility.
1
In addition to placing Mr. Jarrett on academic probation
for two semesters, the Committee also required Mr. Jarrett
obtain the latest issue of Wisconsin Lawyer magazine, read the
pages pertaining to attorney conduct, and schedule a meeting
with the Law School Dean to discuss what he had read. Mr.
Jarrett satisfied these requirements.
5
No. 2015AP1393-BA
¶8 In December 2013, as a third-year law student
anticipating graduation, Mr. Jarrett applied for admission to
the Wisconsin State Bar under the diploma privilege, SCR 40.03.
In his bar application, Mr. Jarrett disclosed having inflated
his grades and misrepresenting his position on the Wisconsin Law
Review in his bar application. Mr. Jarrett failed to report
several traffic citations that he had received between 2009 and
2013.
¶9 In January 2014, a Board investigator contacted Mr.
Jarrett regarding his failure to disclose the traffic citations.
Mr. Jarrett replied in writing that he "legitimately forgot" and
filed an addendum regarding the citations.
¶10 On August 5, 2014, the Board informed Mr. Jarrett,
consistent with SCR 40.08(1), that his bar admission application
was "at risk of being denied" on character and fitness grounds.
Mr. Jarrett formally contested the Board's preliminary adverse
determination and requested a hearing before the Board.
¶11 The Board conducted a hearing on December 8, 2014, at
which Mr. Jarrett appeared. Following the hearing Mr. Jarrett
filed some additional documents in support of his application.
On April 10, 2015, the Board issued an adverse decision making
the findings set forth above, as well as the following findings:
13. During his hearing before the Wisconsin
Board of Bar Examiners, Mr. Jarrett presented
inconsistent and sometimes contradictory statements
regarding his efforts to obtain summer employment with
the New York City Law Department, and about the extent
to which he notified the New York City Law Department
regarding the falsehoods presented to them. He also
6
No. 2015AP1393-BA
minimized the significance of the misconduct in which
he had engaged.
14. Mr. Jarrett's conduct in connection with his
efforts to secure summer employment with the New York
City Law Department was both dishonest and deceptive.
Such conduct demonstrates that Mr. Jarrett is not
honest, diligent, or reliable.
15. Mr. Jarrett also failed to report three
speeding tickets on his bar application. The speeding
infractions occurred in 2009, 2011, and 2014. Mr.
Jarrett explained that the reason he failed to report
those citations was because he forgot about them. The
Board did not find Mr. Jarrett's explanation regarding
why he failed to report those tickets to be credible.
16. In 2006, Mr. Jarrett was arrested in Albany,
Georgia, on a bench warrant because of his failure to
appear for two speeding tickets. As a result of his
nonappearance, he spent two days in jail.
17. Following the receipt of his Georgia
speeding tickets, Mr. Jarrett claimed that he tried
contacting the local traffic department and the court
to change the date of his appearance because it
conflicted with his college exam schedule. However,
Mr. Jarrett admitted that he never wrote a letter or
sent an e-mail in which he notified the court that he
had a conflict on the scheduled date of his
appearance.
18. The Board did not find Mr. Jarrett's
explanations about his misconduct or his omissions on
his bar application to be plausible or believable. As
a result, the Board did not find Mr. Jarrett to be a
credible witness.
¶12 Based on its findings, the Board determined that Mr.
Jarrett failed to establish good moral character and fitness to
practice law in Wisconsin under SCR 40.06(1) and (3),
concluding:
Taken as a whole, Mr. Jarrett's conduct suggests a
pattern of behavior that is both dishonest and
deceptive. He has not been forthright but has instead
7
No. 2015AP1393-BA
engaged in conduct that demonstrates that he is not
honest, diligent, or reliable. Throughout these
proceedings, Mr. Jarrett has consistently tried to
minimize the gravity of his offenses.
¶13 Mr. Jarrett unsuccessfully sought review of the
Board's adverse determination pursuant to SCR 40.08(6). He now
seeks this court's review.
¶14 Mr. Jarrett contends that the Board's findings are
clearly erroneous and should be rejected by this court. See In
re Bar Admission of Rusch, 171 Wis. 2d 523, 528-29, 492 N.W.2d
153 (1992). Furthermore, he contends that the legal conclusions
reached by the Board are not supported by the record evidence,
and that this court must, after its de novo review, reject the
Board's conclusions of law. See Rippl, 250 Wis. 2d 519, ¶16; In
re Bar Admission of Crowe, 141 Wis. 2d 230, 232, 414 N.W.2d 41
(1987). Mr. Jarrett also challenges the Board's decision
declining to offer him conditional bar admission pursuant to SCR
§ 40.075(1). He references numerous, positive character
references and hours of volunteer service. In sum, he maintains
that he has met his burden of producing information sufficient
to affirmatively demonstrate his present character and fitness.
He asks this court to order his immediate admission, order the
Board to conditionally admit him, or allow him to immediately
re-apply for admission to the Wisconsin bar without being
required to take the Wisconsin bar exam.
¶15 When this court reviews an adverse determination of
the Board pursuant to SCR 40.08(7), we adopt the Board's
findings of fact if they are not clearly erroneous. In the
8
No. 2015AP1393-BA
Matter of the Bar Admission of Vanderperren, 2003 WI 37, ¶20,
261 Wis. 2d 150, 661 N.W.2d 27. We then determine if the Board's
conclusions of law based on those facts are proper. Id. This
court retains the ultimate authority to determine who should be
admitted to the bar of this state. While the Board's experience
in administering the bar admission rules is appreciated, this
court is obligated to make its legal determinations de novo.
Rippl, 250 Wis. 2d 519, ¶¶13, 16.
¶16 We reject Mr. Jarrett's assertion that the Board's
findings are clearly erroneous. Mr. Jarrett disputes the Board's
factual finding that "[Mr.] Jarrett exhibited a lack of
candor/credibility in applying for admission," a finding Mr.
Jarrett describes as "patently untrue." He disputes the Board's
finding that he minimized the significance of his conduct,
stating that the Board read too much into the UW misconduct
decision and asserting that the "record shows that [Mr. Jarrett]
realized his actions were significant, wrong, unethical, and
would impact his character and fitness." Mr. Jarrett disputes
the Board's finding that he willfully failed to report the
speeding tickets in his initial bar application. He maintains
that he "legitimately forgot" and notes that he answered "yes"
to Question 21(a) in his bar application which asks if the
applicant has ever been arrested, charged, or issued civil
citations and adds that he "took corrective steps by providing
the Board with separate addenda explaining the circumstances how
he forgot to list them." He thus asserts that he "did not fail
9
No. 2015AP1393-BA
to disclose the fact that he had received multiple speeding
tickets and took action to inform the Board."
¶17 The Board stands by its finding that Mr. Jarrett was
not credible at the hearing before the Board and when claiming
he forgot about the three separate speeding violations from
Georgia, Kentucky, and Wisconsin that he received in 2009, 2011,
and 2013. The Board reminds the court that the 2013 speeding
violation occurred in Madison three months prior to Mr. Jarrett
filing his bar application with the Board. The Board concedes
that each ticket, standing alone, was not overly concerning, but
finds that failing to include all three was "careless at best
and deliberately deceptive at worst." The Board maintains that
Mr. Jarrett has consistently minimized the seriousness of his
behavior by glossing over both the recency and the gravity of
his conduct, pointing not only to statements from the 2012
academic misconduct proceeding but also statements at the
hearing before the Board.
¶18 The Board's factual findings essentially derive from
the undisputed underlying academic misconduct proceeding and
from its own credibility determinations at the Board hearing. We
are disinclined to second guess credibility determinations made
by factfinders. Nothing in this record suggests that it was
clearly erroneous for the Board to reject Mr. Jarrett's claim
that he forgot to disclose traffic citations, particularly when
his application was already at-risk for his admitted academic
misconduct. The other factual findings, particularly those based
10
No. 2015AP1393-BA
on the Board's credibility determination, also have sufficient
support and are not clearly erroneous.2
¶19 We next evaluate the Board's decision not to certify
Mr. Jarrett's character and fitness.
¶20 The standards for evaluating an applicant's admission
to the Wisconsin bar are well settled. SCR 40.06(1) requires
that applicants for bar admission establish good moral character
and fitness to practice law. The burden rests with the
applicant to establish character and fitness to the satisfaction
of the Board. See SCRs 40.06(3) and 40.07. The Appendix to SCR
Ch. 40 contains the Board's rules that provide additional
guidance to the Board and to applicants.
¶21 BA 6.01 provides that "[a] lawyer should be one whose
record of conduct justifies the trust of clients, adversaries,
courts and others with respect to the professional duties owed
to them." That same section notes that "[a] record manifesting
a deficiency in the honesty, diligence or reliability of an
applicant may constitute a basis for denial of admission."
¶22 BA 6.02 provides that in determining whether an
applicant possesses the necessary character and fitness to
practice law, 12 factors "should be treated as cause for further
inquiry." BA 6.02 (Relevant Conduct or Condition). As
2
Mr. Jarrett identifies one factual inaccuracy in the
Board's decision. The Board's underlying decision states that
Jarrett received a speeding citation in 2014. However, the last
traffic citation Mr. Jarrett received occurred in 2013. This
error is not material to the Board's decision.
11
No. 2015AP1393-BA
relevant, these factors include a person's unlawful conduct,
academic misconduct, false statements by the applicant,
including concealment or nondisclosure, and acts involving
dishonesty or misrepresentation. See id.
¶23 BA 6.03 provides that in assigning weight and
significance to the applicant's prior conduct, the following
factors are to be considered:
(a) the applicant's age at the time of the conduct;
(b) the recency of the conduct;
(c) the reliability of the information concerning the
conduct;
(d) the seriousness of the conduct;
(e) the mitigating or aggravating circumstances;
(f) the evidence of rehabilitation;
(g) the applicant's candor in the admissions process;
(h) the materiality of any omissions or misrepresentations;
and
(i) the number of incidents revealing deficiencies.
See SCR 40 app., BA 6.03.
¶24 The crux of this appeal is whether Mr. Jarrett's
conduct and actions, taken as a whole, establish that he has the
requisite character and fitness for admission to the bar. When
conducting our de novo review, we, like the Board, use the
guidelines established in BA 6.02 and BA 6.03.
¶25 The Board was not persuaded that Mr. Jarrett's
academic achievements and his various law-related experiences
were sufficient to warrant certifying his character at this
12
No. 2015AP1393-BA
time. In response to Mr. Jarrett's explanation that he was under
"immense pressure" to find a job for the summer which led him to
make a "poor decision," the Board stated:
[A]t no point did Mr. Jarrett identify any such
specific pressures that may have warranted such
extreme behavior on his part. Presumably the vast
majority of law students want or need summer
employment. Ideally, they would prefer to be employed
in law-related positions. But few, if any, resort to
conduct similar to Mr. Jarrett's in order to obtain
it. His explanation for engaging in conduct of this
type primarily because he was under pressure is not
convincing and rings hollow.
¶26 As the Board observed, whatever pressures Mr. Jarrett
felt while in law school "are not likely to appreciably diminish
or disappear now that he has graduated."
¶27 Having reviewed the record and the Board's specific
findings, we reject Mr. Jarrett's claim that, in making its
decision, the Board focused solely on the 2012 incident. We are
persuaded that the Board duly considered all facets of Mr.
Jarrett's application, and its decision was not based solely or
unduly on the 2012 misconduct. See Saganski v. Board of Bar
Examiners, 226 Wis. 2d 678, 595 N.W.2d 631 (1999) (holding that
it is sufficient that the Board consider those BA 6.03 factors
that are applicable to the conduct of the applicant).
¶28 Mr. Jarrett argues that the BBE's adverse
determination is inconsistent with this court's resolution of
other bar admission cases. This court has, on several
occasions, certified applicants to the bar despite an adverse
determination from the BBE.
13
No. 2015AP1393-BA
¶29 In Anderson, the court deemed the applicant's
"extremely immature and troubling" behavior "sufficiently remote
in time and not of sufficient gravity to warrant a conclusion
that Mr. Anderson should be forever barred from admission to the
practice of law in this state." In the Matter of the Bar
Admission of Anderson, 2006 WI 57, ¶26, 290 Wis. 2d 722, 715
N.W.2d 586. By the time of his bar application, Mr. Anderson's
record had been unblemished for several years.
¶30 In Vanderperren, the Board's refusal to certify Ms.
Vanderperren was based primarily on her "less than forthright
and complete responses" to questions on her application for
admission to Hamline University School of Law, and on her
subsequent Wisconsin bar application. By the time this court
considered her bar application, Ms. Vanderperren had been
admitted to practice law in Minnesota, had passed the Wisconsin
bar exam, had voluntarily corrected her bar application, and
several years had elapsed since her last reported incident
involving excessive alcohol consumption. Vanderperren, 261 Wis.
2d 150, ¶65; see also Rippl, 250 Wis. 2d 519, ¶3.
¶31 Mr. Jarrett reminds the court that here, "[m]ore than
two years elapsed between the academic misconduct and the date
of the Board's hearing, and more than three years have elapsed
as of today." Indeed, as of the date of this court's decision,
nearly four years have passed. Mr. Jarrett argues that now,
sufficient time has passed and he should be admitted to practice
law.
14
No. 2015AP1393-BA
¶32 The Board was right to be deeply concerned by Mr.
Jarrett's dishonesty, which cannot fairly be characterized as
"youthful excesses and mistakes" and is different from
indiscretions arising from immature behavior coupled with
situational or pervasive substance abuse that has since been
addressed.
¶33 Still, a majority of this court has determined that
denying Mr. Jarrett admission to the bar is simply too harsh a
penalty under the circumstances presented. We appreciate the
time-consuming and difficult job the Board performs in
conducting its character and fitness investigations. Indeed, we
find no fault with the Board's findings or reasoning in this
case. The Board serves the critically important role as a
gatekeeper to admission to the bar. Ultimately, however, we are
persuaded that, subject to the imposition of certain conditions,
Mr. Jarrett may safely be admitted to the practice of law.
¶34 While not excusing his actions, we are mindful that
Mr. Jarrett has faced difficult family circumstances that
imposed considerable pressure on him, both financial and
otherwise. His goal of becoming a lawyer has now been delayed
several years, and his prospect of ever obtaining bar admission
has been uncertain. By his own admission, his actions in law
school have caused him significant obstacles, embarrassment, and
financial difficulties.
15
No. 2015AP1393-BA
¶35 In the nearly four years since his academic
misconduct, Mr. Jarrett has completed unpaid legal internships
and meaningful legal volunteer work serving economically
challenged clients, has mentored students, and currently works
in a public trust position in Washington, D.C. Employers and
professors who have worked closely with Mr. Jarrett speak highly
of him as an individual, and of his sincere commitment to
justice. The many letters reflect a consistent theme of
admiration for Mr. Jarrett's work ethic, judgment, and his
compassion. We therefore choose to exercise our prerogative and
afford this applicant the benefit of the doubt.3
¶36 Accordingly, we direct the Board to certify Mr.
Jarrett's admission to practice law in Wisconsin. Mr. Jarrett's
admission to the practice of law in Wisconsin is contingent on
his compliance with certain requirements set forth in this order
as well as certain conditions on his license to practice law.
Specifically, we direct the Office of Lawyer Regulation (OLR) to
identify and appoint a practice monitor to serve as a mentor to
Mr. Jarrett and to supervise and oversee Mr. Jarrett's practice
of law and related professional activities for a period of two
We accept the Board's determination that conditional
3
admission pursuant to SCR 40.075(1) was not appropriate here.
This does not preclude this court from imposing its own
conditions on Mr. Jarrett's license to practice law.
16
No. 2015AP1393-BA
years following the practice monitor's appointment. The
practice monitor shall be licensed to practice law in Wisconsin
and be located in the region of Mr. Jarrett's place of
employment or residence.
¶37 Upon Mr. Jarrett's admission to the practice of law in
Wisconsin and his enrollment with the State Bar of Wisconsin
pursuant to SCR 10.03(2), Mr. Jarrett is directed to initially
elect inactive membership status. See SCR 10.03(3)(a). This
will afford the OLR time to identify a practice monitor and will
obviate the need for Mr. Jarrett to bear the costs and
obligations of monitoring before he assumes the active practice
of law.
¶37 When the OLR advises Mr. Jarrett that a practice
monitor has been identified, Mr. Jarrett may, with written
notice to the OLR, change his classification to active status by
complying with SCR 10.03(3)(b)1. The formal appointment date of
the monitor will be the date Mr. Jarrett elects active
membership in the State Bar pursuant to SCR 10.03 (3)(b)1.
¶38 We direct Mr. Jarrett to cooperate with the OLR,
cooperate with his practice monitor, comply with all
requirements imposed upon him by the OLR relating to his
monitoring including executing, within five days of the date he
elects active membership, a written monitoring agreement setting
forth the terms of Mr. Jarrett's monitoring as determined by the
17
No. 2015AP1393-BA
practice monitor. Mr. Jarrett shall comply with all reasonable
requests of his practice monitor4 and shall bear the reasonable
costs of such monitoring.
¶39 Upon appointment, the monitor shall report to the OLR,
in writing, on a quarterly basis. Within thirty days prior to
the expiration of the two-year monitoring period, the OLR shall
file a report in this court in which it shall recommend to the
court that the conditions on Mr. Jarrett's admission be allowed
to terminate or be extended.
¶40 Should Mr. Jarrett fail to make a good faith effort to
satisfy these conditions, or should he commit misconduct during
the monitoring period, his license to practice law may be
suspended or revoked and he may be subject to other discipline
pursuant to the Rules of Professional Conduct for Attorneys.
¶41 IT IS ORDERED that the decision of the Board of Bar
Examiners declining to certify that Joshua E. Jarrett has
satisfied the requirements for admission to the practice of law
in Wisconsin is reversed and the matter is remanded to the Board
for further action consistent with this order.
4
Lawyer monitoring often requires a lawyer to undergo an
AODA (alcohol and other drug abuse) assessment and/or
psychological evaluation. The record before this court is devoid
of evidence suggesting these assessments are needed here. They
should not be imposed absent evidence that would warrant such
conditions.
18
No. 2015AP1393-BA
¶42 IT IS FURTHER ORDERED that Joshua E. Jarrett shall
comply with the directives set forth in this order and shall,
promptly upon receipt of this order, provide the Office of
Lawyer Regulation with a copy of the entire record in this
matter and authorize the OLR to share the record with the
practice monitor.
¶43 IT IS FURTHER ORDERED that subject to the required
disclosures to the Office of Lawyer Regulation and practice
monitor as set forth herein, the documents submitted under seal
are deemed confidential, and will be maintained under seal until
further order of the court.
19
No. 2015AP1393-BA.dtp
¶44 DAVID T. PROSSER, J. (concurring). This is an
unusual and difficult case that has divided the court. I write
separately to explain my thinking.
¶45 The court finds no fault in the decision of the Board
of Bar Examiners (Board) not to certify Joshua Jarrett
unconditionally for membership in the Wisconsin bar. We also
understand the Board's determination that Mr. Jarrett did not
qualify for conditional admission under SCR 40.075 because
"[o]nly an applicant whose record of conduct demonstrates
documented ongoing recovery [from such problems as drug or
alcohol dependency] and an ability to meet the competence and
character and fitness requirements set forth in SCR 40.02 may be
considered for conditional admission." SCR 40.075(1) (emphasis
added). The Board reasoned that Mr. Jarrett did not meet the
character and fitness requirements of the rule and that the rule
has no provision for demonstrating the "ongoing recovery" of an
applicant's character and fitness.
¶46 Admittedly, the Board did "not foreclose [Mr. Jarrett]
from ever practicing law in Wisconsin." He could, the Board
said, take a bar examination pursuant to SCR 40.04. But a
majority of the court believes this option is not satisfactory
on the facts of the case.
¶47 Mr. Jarrett graduated from the University of Wisconsin
Law School in mid-2014. He has been out of law school now for
two years. He presently lives in Maryland and works in a non-
legal capacity in the District of Columbia.
¶48 To take the Wisconsin bar exam, Mr. Jarrett would have
to come to Wisconsin, and he would likely have to enroll in a
1
No. 2015AP1393-BA.dtp
Wisconsin bar review course to prepare for the examination.
Passing the exam would reaffirm his legal competence——which is
not in dispute——but it would not necessarily enhance his
"character and fitness" or assure that the Board would grant him
certification.
¶49 As an alternative, Mr. Jarrett could take a bar exam
in the District of Columbia, Maryland, or his home state of
Georgia. Superficially, one of these options might appear more
convenient, but they would all be time consuming and costly and
would not assure his admission in one of those jurisdictions so
long as the denial of his Wisconsin admission remained
unchanged.
¶50 In my view, the fundamental question facing the court
is whether it is possible to permit Mr. Jarrett to practice law
now, under reasonable conditions, without depreciating the
seriousness of his misconduct. If we answer this question
"yes," we risk criticism that we have damaged the reputation and
integrity of the legal profession. If we answer the question
"no," however, we may be precluding Mr. Jarrett from ever
practicing law.
¶51 There may be risks in our decision. But intelligent
risk-taking often yields spectacular rewards. I believe Mr.
Jarrett has the ability to be a superb attorney, and he has
demonstrated the desire to serve others. This court expects Mr.
Jarrett to vindicate the high hopes we have in him. It will
surely remember if he does not.
¶52 Courts cannot succeed for long if they are unable to
leaven justice with mercy. By fashioning a unique form of
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conditional admission, we practice that principle in the present
case.
¶53 For the reasons stated, I respectfully concur in the
opinion of the court.
¶54 I am authorized to state that Justice ANN WALSH
BRADLEY and Justice REBECCA G. BRADLEY join this concurrence.
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¶55 PATIENCE DRAKE ROGGENSACK, C.J. (dissenting). I
would affirm the final decision of the Board of Bar Examiners
(Board) declining to certify Joshua E. Jarrett's character and
fitness for admission to the Wisconsin bar. I am persuaded by
the Board's finding that Mr. Jarrett's conduct in connection
with his efforts in 2012 to secure summer employment with the
New York City Law Department was both dishonest and deceptive
and that such conduct demonstrates that Mr. Jarrett has acted in
a manner that is not honest, diligent, or reliable. Coupled
with the Board's finding that Mr. Jarrett was not credible at
the evidentiary hearing before the Board and when claiming he
forgot to disclose three fairly recent separate speeding
violations from Georgia, Kentucky, and Wisconsin, I conclude
that there are simply too many incidents in which Mr. Jarrett
considered the truth optional when it was not to his advantage.
¶56 Based on the record before this court, I am not
persuaded that Mr. Jarrett has demonstrated the requisite moral
character and fitness "needed to assure to a reasonable degree of
certainty the integrity and the competence of services performed
for clients and the maintenance of high standards in the
administration of justice." SCR 40.06. I would affirm the
Board's decision.
¶57 I am authorized to state that Justices ANNETTE
KINGSLAND ZIEGLER and MICHAEL J. GABLEMAN join this dissent.
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