Office of Lawyer Regulation v. Elvis C. Banks

2020 WI 51

SUPREME COURT OF WISCONSIN
CASE NO.: 2002AP1871-D

COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Elvis C. Banks, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Elvis C. Banks,
Respondent.

ATTORNEY BANKS REINSTATEMENT PROCEEDINGS
Reported at 329 Wis. 2d 39,787 N.W.2d 809
PDC No:2010 WI 105 - Published

OPINION FILED: June 3, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
KELLY, J. dissents, joined by REBECCA GRASSL BRADLEY, J.
NOT PARTICIPATING:

ATTORNEYS:
 2020 WI 51
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2002AP1871-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Elvis C. Banks, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant, JUN 3, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Elvis C. Banks,

Respondent.

ATTORNEY reinstatement proceeding. Reinstatement granted,

with conditions.

¶1 PER CURIAM. We review a report filed by Referee John

B. Murphy, recommending that the court reinstate, with conditions,

Elvis C. Banks' license to practice law in Wisconsin. After

careful review of the matter, we agree that Attorney Banks' license

should be reinstated and that conditions should be placed upon his

practice of law. We also conclude that Attorney Banks should be

required to pay the full costs of this reinstatement proceeding,

which are $4,205.80 as of September 18, 2019.
 No. 2002AP1871-D

¶2 Attorney Banks was admitted to the practice of law in

Wisconsin in September 1997. This court revoked his license to

practice law in this state on July 16, 2003. See In re Disciplinary

Proceedings Against Banks, 2003 WI 115, 265 Wis. 2d 45, 665

N.W.2d 827. In that disciplinary proceeding, Attorney Banks pled

no contest to 42 separate counts of professional misconduct arising

out of 20 separate representations. The counts included eight

violations involving dishonesty, fraud, deceit, or

misrepresentation; 11 violations for failure to follow client

trust account rules; ten violations for failing to provide

competent representation; eight violations for failing to act with

reasonable diligence and promptness in representing a client; and

one violation for knowingly disobeying an obligation under the

rules of a tribunal. In addition to pleading no contest to the 42

counts mentioned above, Attorney Banks also filed a petition for

consensual license revocation, in which he admitted that he could

not defend against 17 additional counts of misconduct in another

seven client matters. Because we revoked his license on the basis
of the 42 counts in the then-pending disciplinary proceeding, we

deemed it unnecessary to rule on the additional misconduct

disclosed in the petition for consensual license revocation.

¶3 Attorney Banks filed a petition for reinstatement of his

license to practice law in May of 2009. This court denied the

petition for reinstatement, agreeing with the referee that

Attorney Banks had failed to satisfy the requirements for

reinstatement. In re Disciplinary Proceedings Against Banks, 2010
WI 105, 329 Wis. 2d 39, 787 N.W.2d 809.
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¶4 On June 29, 2018, Attorney Banks filed a second

reinstatement petition. After an investigation, the Office of

Lawyer Regulation (OLR) filed a response on March 25, 2019, stating

that it opposed Attorney Banks' reinstatement due to various

concerns, including his failure to pay $11,430.04 in costs owed in

connection with his 2003 disciplinary case and his first attempt

at reinstatement, and his failure to pay $900 in restitution to

the Wisconsin Lawyers' Fund for Client Protection, which had made

a payment in that amount arising from his misconduct.

¶5 The referee then held a public hearing on the

reinstatement petition, at which only Attorney Banks testified.

¶6 The parties filed post-hearing memoranda. As will be

explained in more detail below, the OLR stated in its post-hearing

memorandum that, based upon consideration of the complete record

and in light of a post-hearing commitment by Attorney Banks to pay

the OLR $300 per month toward his outstanding costs obligation,

the OLR no longer opposed Attorney Banks' reinstatement.

¶7 On September 6, 2019, the referee filed a report
recommending that this court conditionally grant Attorney Banks'

reinstatement petition. Among other things, the referee found

that, since his revocation, Attorney Banks has "applied himself

diligently to getting his life back on track"——efforts that are

"impressive" and "give insight into the strength of [his]

character." The referee found that Attorney Banks currently works

as a school teacher and a security guard. The referee found that

Attorney Banks has remained current with his continuing legal

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 No. 2002AP1871-D

education requirements.1 The referee found that, if reinstated,

Attorney Banks does not intend to practice law in Wisconsin, but

rather plans to use his Wisconsin law license to help him become

licensed to practice law in Tennessee or Mississippi. The referee

found that Attorney Banks has committed to pay the OLR $300 per

month toward his outstanding costs obligations. Ultimately, the

referee wrote that he "concur[red] with the OLR recommendation

that [Attorney] Banks' license to practice law in Wisconsin should

be reinstated." The referee proposed that the court impose the

following two conditions on Attorney Banks' reinstatement: (1)

that he fully comply with his costs payment agreement with the

OLR; and (2) that he annually provide the OLR with a summary of

his finances.

¶8 Neither party appeals from the referee's recommendation,

so the court considers this matter pursuant to SCR 22.33(3).2

¶9 In our 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

1 We note that the Board of Bar Examiners filed a memorandum
on April 9, 2020, confirming that Attorney Banks is currently in
compliance with the court's continuing legal education and ethics
and professional responsibility requirements.

2 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."

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 No. 2002AP1871-D

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.

¶10 Supreme Court Rule 22.29(4) provides that a petition for

reinstatement must 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.
(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.

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 No. 2002AP1871-D

(h) The petitioner has fully complied with the requirements

set forth in SCR 22.26.3

3
SCR 22.26 provides:

(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:

(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability to
act as an attorney following the effective date of the
suspension or revocation.

(b) Advise the clients to seek legal advice of their
choice elsewhere.

(c) Promptly provide written notification to the
court or administrative agency and the attorney for each
party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as an
attorney following the effective date of the suspension
or revocation. The notice shall identify the successor
attorney of the attorney's client or, if there is none
at the time notice is given, shall state the client's
place of residence.

(d) Within the first 15 days after the effective
date of suspension or revocation, make all arrangements
for the temporary or permanent closing or winding up of
the attorney's practice. The attorney may assist in
having others take over clients' work in progress.

(e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:

(continued)

(i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
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 No. 2002AP1871-D

(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.

¶11 Supreme Court Rule 22.29(4m) requires the petitioner to

show that he or she has made restitution to or settled all claims

of persons injured or harmed by the petitioner's misconduct,

including reimbursement to the Wisconsin Lawyers' Fund for Client

procedures regarding the closing of the attorney's
practice.

(ii) A list of all jurisdictions, including state,
federal and administrative bodies, before which the
attorney is admitted to practice.

(iii) A list of clients in all pending matters and
a list of all matters pending before any court or
administrative agency, together with the case number of
each matter.

(f) Maintain records of the various steps taken
under this rule in order that, in any subsequent
proceeding instituted by or against the attorney, proof
of compliance with the rule and with the suspension or
revocation order is available.

(2) An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity customarily
done by law students, law clerks, or other paralegal
personnel, except that the attorney may engage in law
related work in this state for a commercial employer
itself not engaged in the practice of law.

(3) Proof of compliance with this rule is a
condition precedent to reinstatement of the attorney's
license to practice law.

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 No. 2002AP1871-D

Protection for all payments made from that fund, or explained the

failure or inability to do so.

¶12 Supreme Court Rule 22.31(1)(c) provides that an attorney

seeking reinstatement has the burden of demonstrating all of the

above requirements by clear, satisfactory, and convincing

evidence. Supreme Court Rule 22.31(1) also provides that an

attorney seeking reinstatement 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 to the public interest; and that he or she has complied

with SCR 22.26 and the terms of the underlying disciplinary order.

See SCR 22.31(1)(a), (b), and (d).

¶13 Our review of this matter is complicated by the fact

that the referee did not make specific findings or conclusions

with respect to a number of the criteria required for

reinstatement. Instead, the referee primarily focused on what he

viewed as the most significant challenge facing Attorney Banks'
reinstatement petition: his failure to pay $11,430.04 in costs

owed in connection with his 2003 disciplinary case and his first

attempt at reinstatement.

¶14 To be sure, Attorney Banks' outstanding costs obligation

was an important factor for the referee to consider. Outstanding

costs obligations must be addressed in reinstatement proceedings,

see SCR 22.29(4)(c) and 22.31(1)(d), and their existence bears on

many of the reinstatement criteria. But as our above discussion
of SCR 22.29(4), (4m), and 22.31(1) shows, there are many other
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 No. 2002AP1871-D

factors that must be taken into account, and the referee's report

suffers for having failed to explicitly and thoroughly do so.

¶15 Although the referee's report is lacking in this

respect, we opt not to remand this matter to the referee for

additional findings and conclusions, for two reasons. First,

further proceedings before the referee would generate additional

costs for Attorney Banks——who, the record shows, already has

considerable financial obligations——and would serve to delay the

disposition of this matter further. Second, in its post-hearing

memorandum filed with the referee, the OLR agreed that Attorney

Banks has satisfied all requirements for reinstatement, and the

referee endorsed this agreement between the parties.

Specifically, the OLR wrote:

To gain reinstatement, [Attorney] Banks must prove by
clear, satisfactory, and convincing evidence that: (a)
he has the moral character to practice law; (b) his
resumption of the practice of law will not be detrimental
to the administration of justice or subversive of the
public interest; (c) his representations in the
reinstatement petition, including the representations
required by SCR 22.29(4)(a)-(k), (4m), and (5), are
substantiated; and (d) he has complied fully with the
terms of the revocation order and with the requirements
of SCR 22.26. Based upon the complete record, on balance
it appears that [Attorney] Banks made an adequate
showing as to (a)-(c) and, in light of his post-
reinstatement hearing renewed costs repayment
arrangement with OLR, is in substantial compliance with
(d), as well. Accordingly, OLR does not oppose
reinstatement. (citations and footnote omitted).
As noted, the referee wrote in his report that he "concur[s] with

the OLR recommendation that [Attorney] Banks' license to practice
law in Wisconsin should be reinstated."

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 No. 2002AP1871-D

¶16 Although it would have been far better practice for the

referee to have made specific findings and conclusions regarding

each of the reinstatement requirements, informed by the parties'

agreement that they have been met, the lack of such explicit

findings and conclusions does not require that we remand this

matter to the referee. The parties and the referee concur that

Attorney Banks has satisfactorily shown that he has met the

reinstatement criteria delineated above. Although we are not bound

by this consensus, see In re Disciplinary Proceedings Against

Ruppelt, 2017 WI 80, ¶¶30, 34, 377 Wis. 2d 441, 898 N.W.2d 473, we

agree with its correctness, based on our independent review of the

record and the particular circumstances of this case.

¶17 Therefore, we hold that Attorney Banks is entitled to

reinstatement of his license to practice law in Wisconsin. In

order to ensure that Attorney Banks remains in compliance with the

terms of his previous disciplinary and reinstatement proceedings

and with the requirements of SCR 22.26, and in order to ensure his

past misconduct is not repeated, we deem it appropriate to impose
the following conditions on the reinstatement of his license to

practice law in Wisconsin:

 Attorney Banks shall continue to comply with his costs

payments to the OLR until such time as his costs obligation

is fully satisfied.

 Within 30 days of the date of his reinstatement, Attorney

Banks shall confer with appropriate representatives of the

OLR to discuss and reach a plan for repayment of the $900

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 No. 2002AP1871-D

in restitution owed to the Wisconsin Lawyers' Fund for

Client Protection.

 Attorney Banks shall annually file with the OLR a financial

statement in a form acceptable to the OLR, along with

copies of his state and federal tax returns, until such

time as he has satisfied all costs and restitution

obligations referenced above.

¶18 Finally, with respect to the costs of this reinstatement

proceeding, it is our general practice to assess the full costs of

the proceeding against the petitioning attorney. See

SCR 22.24(1m). The OLR's statement of costs indicates that the

costs of this proceeding, as of September 18, 2019, were $4,205.80.

Attorney Banks has not filed an objection to the OLR's statement

of costs, and we find no basis to depart from our general policy

in this matter. Accordingly, we impose the full costs of the

reinstatement proceeding on Attorney Banks. As is standard

procedure, Attorney Banks may contact the OLR to request a payment

plan that will enable him to pay the full costs of this proceeding
in a matter consistent with his financial ability.

¶19 IT IS ORDERED that the license of Elvis C. Banks to

practice law in Wisconsin is reinstated, effective the date of

this order, subject to compliance with the conditions set forth in

this order. Absent such compliance, and absent a showing to this

court of his inability to comply with this order, the license of

Elvis C. Banks to practice law in Wisconsin shall be suspended

until further order of the court.

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¶20 IT IS FURTHER ORDERED that within 60 days of the date of

this order, Elvis C. Banks shall pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $4,205.80 as of

September 18, 2019, 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. 2002AP1871-D.dk

¶21 DANIEL KELLY, J. (dissenting). I respectfully, and

reluctantly, dissent. Our rules say that an attorney seeking

reinstatement must prove, inter alia, 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)(f));

 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 courts."
(SCR 22.29(4)(g));

 He "has the moral character to practice law in
Wisconsin." (SCR 22.31(1)(a)); and

 His "resumption of the practice of law will not be
detrimental to the administration of justice or
subversive of the public interest."
(SCR 22.31(1)(b)).
Mr. Banks must establish these criteria with "clear, satisfactory,

and convincing evidence" (SCR 22.31(1)) at a reinstatement hearing

before a court-appointed referee. SCR 22.30. I dissent because

we have no way of knowing whether Mr. Banks meets those
prerequisites; I do so reluctantly because I am privy to no

information suggesting he does not.

¶22 I am in this uncomfortable place primarily because of

the deficiencies of the referee's report. The referee's role in

the reinstatement process is crucial. His responsibility is not

just to resolve disputed facts; he actually creates the factual

record we use in determining whether the petitioner has satisfied
the prerequisites for reinstatement. SCR 22.32(1) ("[T]he referee

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shall file in the supreme court a report setting forth findings

and a recommendation on the petition for reinstatement."). We are

not the finders of fact——we simply review the referee's findings

for clear error. See Disciplinary Proceedings Against Mutschler,

2019 WI 92, ¶9, 388 Wis. 2d 486, 933 N.W.2d 99 ("On review, we

accept a referee's findings of fact unless they are clearly

erroneous.") We then determine for ourselves whether those facts

warrant reinstatement of the petitioner's license to practice law

(although we benefit from the referee's analysis and

recommendation). Id. ("We review a referee's legal conclusions,

including whether the attorney has satisfied the criteria for

reinstatement, on a de novo basis."); Disciplinary Proceedings

Against Mandelman, 2018 WI 56, ¶24, 381 Wis. 2d 628, 912

N.W.2d 395 reconsideration denied sub nom. Office of Lawyer

Regulation v. Mandelman, 2018 WI 100, 384 Wis. 2d 771, 920

N.W.2d 928 ("We benefit from the referee's findings and

conclusions . . . ."). This responsibility "require[s] us to

undertake a comprehensive assessment of the lawyer . . . ."). Id.
¶23 The report in this case, however, prevents us from

performing that comprehensive assessment. The referee made not a

single finding relevant to the criteria quoted above, a deficiency

readily acknowledged by the court's opinion. Majority op., ¶13

("[T]he referee did not make specific findings or conclusions with

respect to a number of the criteria required for reinstatement.").

How, then, are we supposed to know whether Mr. Banks properly

understands his responsibilities as an attorney? Or whether we
can safely recommend him to our fellow Wisconsinites as a person
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 No. 2002AP1871-D.dk

fit to practice law? What are we to consult in determining whether

he has the moral character we expect of those we license? If asked

to justify our decision today, on what would we rely for our

confidence that his practice will not subvert the public interest?

¶24 The court's solution is to take on the role of the

referee and perform an independent assessment of the record.

Majority op., ¶16. Nothing in our rules prevents this course of

action, and indeed it may be pragmatically preferable to remanding

the matter to the referee for additional attention. I would accept

that unorthodox procedure if the record didn't mirror the report's

lack of facts supporting the criteria I identified above.

¶25 Take, for example, Mr. Banks' obligation to prove 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)(f). His petition alleges, in

conclusory fashion, that he has satisfied this condition. The

Office of Lawyer Regulation ("OLR"), however, was not convinced.

Its response says "Banks has not met his burden regarding this
requirement given his continued lack of appreciation for what he

did wrong and his statements suggesting that he continues to

believe that the events leading to his revocation were not within

his control." The OLR proceeded to document three specific ways

in which Mr. Banks failed this standard. At the ensuing hearing,

no one addressed this issue. Mr. Banks' written closing statement

obliquely touched on it by expressing his appreciation for the

role of the rule of law in reducing racial discrimination, and by
asserting he has "always had a proper understanding and attitude
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 No. 2002AP1871-D.dk

toward the standards that are imposed upon members of the bar."

Notwithstanding its original position, the OLR's closing statement

says that, "[b]ased upon the complete record, on balance it appears

that Banks made an adequate showing as to" his compliance with

SCR 22.29(4)(f). If he did, indeed, make an adequate showing,

it's not reflected anywhere in the record. All we have to go on

is the OLR's unsubstantiated assurance.

¶26 The same is true with respect to his duty to prove 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 courts.
SCR 22.29(4)(g). As with the previous criterion, his petition

summarily asserts he satisfies this condition. The OLR contests

this assertion, just as it did above, and substantiates its

concerns with specific examples of his lack of fitness. No one

addressed this issue at the hearing either. Nonetheless, the OLR's

post hearing submission asserts Mr. Banks' fitness. The OLR does

not say what changed between its response to the petition and its

closing statement. So when the court concludes that Mr. Banks is

fit to practice law, it is relying on nothing more than the OLR's

unexplained change of opinion.

¶27 The record is similarly lacking with respect to Mr.

Banks' obligation to prove he "has the moral character to practice

law in Wisconsin." SCR 22.31(1)(a). After reviewing Mr. Banks'

petition and supporting material, the OLR opined that he "faces a
high burden to prove that he has the moral character to practice

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law in Wisconsin . . . ." This suggests that, at least at the

beginning of the hearing, Mr. Banks' materials had failed to

convince the OLR that he has the requisite character. But after

the hearing, at which no one spoke of this issue, the OLR changed

its position, saying Mr. Banks "had made an adequate showing" of

a moral character sufficient to practice law in Wisconsin. The

OLR doesn't say what informed this belief or why it changed its

position. Nor does anything in the record shed light on the

switch. Nor does it give us the information necessary to

independently conclude the OLR's original reticence was

unjustified.

¶28 Finally, it seems everyone has simply ignored the

requirement that Mr. Banks prove his "resumption of the practice

of law will not be detrimental to the administration of justice or

subversive of the public interest." SCR 22.31(1)(b). The OLR's

questionnaire asks for a statement of facts showing that Mr. Banks

satisfied this requirement. His response simply says "see

addendum." The addendum comprises nothing but a collection of
financial documents. No one addressed this issue in the hearing,

and the OLR's closing statement simply asserts he has satisfied

the criterion. So once again, an independent review of the record

discloses that we have nothing upon which to base our conclusion

except the OLR's unsubstantiated assertion.

¶29 I do not doubt the OLR genuinely believes that Mr. Banks

has satisfied the prerequisites to reinstatement of his law

license. Nor do I have information affirmatively suggesting Mr.
Banks should not be reinstated. But we don't reinstate attorneys
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based on the OLR's beliefs or the absence of negative information

in the record. We require proof——by clear, satisfactory, and

convincing evidence——that the petitioner has affirmatively met the

conditions for reinstatement. Instead of proof, however, we have

a referee's report that does not address the criteria discussed

above, a lack of testimony or other evidence from Mr. Banks to

prove their satisfaction, and the OLR's failure to explain why it

believes we need not inquire any further into the rationale for

his reinstatement. And that means, with respect to the criteria

I identified above, we have no facts at all with which to inform

our judgment. So although we have the authority to act as the

fact finder in reinstatement petitions, I haven't found facts in

this record to support the reinstatement criteria I discussed.

For these reasons, I would remand the petition to the referee for

further fact-finding. Therefore, I respectfully (and reluctantly)

dissent.

¶30 I am authorized to state that Justice REBECCA GRASSL

BRADLEY joins this dissent.

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