Office of Lawyer Regulation v. Barry LeSieur

2013 WI 39

SUPREME COURT OF WISCONSIN
CASE NO.: 2007AP2763-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Barry LeSieur, Attorney at Law:

Office of Lawyer Regulation,
Complainant-Respondent,
v.
Barry LeSieur,
Respondent-Appellant.

DISCIPLINARY PROCEEDINGS AGAINST LESIEUR

OPINION FILED: May 3, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
 2013 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. 2007AP2763-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Barry LeSieur, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAY 3, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Barry LeSieur,

Respondent-Appellant.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. In this matter, we consider a motion

filed by the Office of Lawyer Regulation (OLR) seeking a
suspension of the license of Attorney Barry LeSieur to practice

law in Wisconsin due to his alleged noncompliance with the
conditions we imposed on his practice of law in a prior

disciplinary opinion and order in this same proceeding. See In
re Disciplinary Proceedings Against LeSieur, 2010 WI 117, 329

Wis. 2d 349, 789 N.W.2d 572 (LeSieur I). Because it appeared
 No. 2007AP2763-D

that there were factual issues regarding whether Attorney

LeSieur had violated his obligations under LeSieur I, we

referred the OLR's motion to a referee with directions to

conduct a hearing, to make findings of fact and conclusions of

law regarding whether or not Attorney LeSieur had complied with

our order, and to make a recommendation regarding the

appropriate type and level of sanction, if any, that the court

should impose on Attorney LeSieur, if noncompliance was found.

After receiving the referee's report and recommendation, we

issued an order to Attorney LeSieur directing him to show cause

why his license should not be suspended as recommended by the

referee. We now review the report and recommendation of the

referee and Attorney LeSieur's response to the order to show

cause.

¶2 Based on Attorney LeSieur's default as found by the

referee, we conclude that Attorney LeSieur failed to comply with

the order of this court in LeSieur I and with multiple orders of
the referee. We therefore determine that Attorney LeSieur's

license to practice law in Wisconsin should be suspended until

such time as he meets the requirements we set forth below, that

the conditions on his practice of law in this state should be

extended for an additional period of two years following the

date on which his license is reinstated, and that he should be

required to pay the full costs of this motion proceeding.

¶3 The conduct underlying the original charge against

Attorney LeSieur was his third conviction for driving while

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 No. 2007AP2763-D

intoxicated (OWI).1 In addition to publicly reprimanding

Attorney LeSieur, the court placed a number of conditions on his

continued practice of law. In particular, the LeSieur I

decision and order required Attorney LeSieur to execute one or

more releases that complied with the federal Health Insurance

Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.

§ 201 et seq., and all applicable federal and state laws and

that authorized the disclosure of his health records for each

treatment provider who was providing or had provided alcohol-

related or substance abuse-related treatment or services to

Attorney LeSieur within the preceding ten years. The releases

were to authorize disclosure to his treatment providers so that

they could share information regarding his condition and to the

OLR so that it could monitor his situation and ensure compliance

with the conditions imposed on his practice. The court's order

in LeSieur I directed the OLR to maintain the confidentiality of
all of the documents or information it received. Our order

required the release(s) signed by Attorney LeSieur to remain in

effect for a period of two years.

¶4 The order in LeSieur I further required Attorney

LeSieur to undergo an alcohol and other drug abuse (AODA)

evaluation by a professional AODA counselor or treatment

provider, who was to produce a written report of the evaluation.

The written report was required to include recommendations for

1
Although it was Attorney LeSieur's third OWI conviction,
it was the fifth time that he had been arrested for OWI.

3
 No. 2007AP2763-D

Attorney LeSieur's continuing treatment or maintenance.

Attorney LeSieur was ordered to comply with all such

recommendations.

¶5 Finally, the LeSieur I order mandated that for a

period of two years, Attorney LeSieur must undergo random

alcohol and substance abuse screenings at his own expense. The

OLR was instructed to direct and monitor these screenings.

¶6 In June 2011 the OLR filed the motion now under

consideration.2 Its motion simply moved the court to issue an

order requiring Attorney LeSieur to show cause why his license

should not be suspended for willful failure to comply with the

conditions set forth in LeSieur I. Supporting the motion was an
affidavit of Linda Albert, the monitoring supervisor of the

Wisconsin Lawyers Assistance Program (WisLAP). Albert's

affidavit stated that following the issuance of the LeSieur I

decision, the OLR had referred Attorney LeSieur to WisLAP as its

designee for monitoring the conditions imposed on his practice.

The affidavit provided a detailed recitation of WisLAP's

interactions with Attorney LeSieur. After receiving a

sufficient AODA assessment from the AODA counselor that Attorney

LeSieur had been seeing and after discussions with Attorney

LeSieur, WisLAP finally received a signed monitoring contract in

March 2011. Albert alleged that over the course of the next

2
As it did in In re Disciplinary Proceedings Against
Lister, 2012 WI 102, 343 Wis. 2d 532, 817 N.W.2d 867, the OLR
filed the present motion for a suspension in the original
disciplinary proceeding rather than initiating a separate
investigation and new disciplinary proceeding.

4
 No. 2007AP2763-D

month, Attorney LeSieur had violated the WisLAP monitoring

contract and the conditions imposed in LeSieur I in a number of

ways.

¶7 This court initially directed the OLR to provide the

legal basis for bringing such an enforcement motion in the

underlying disciplinary proceeding rather than filing a new

complaint and to explain the nature of the suspension it was

seeking. The OLR subsequently responded that, although it could

bring a new complaint alleging a charge of noncompliance with a

court order, it brought the motion seeking an order to show

cause as a way to expedite the matter. It further stated that

it was seeking an indefinite suspension of Attorney LeSieur's

license until such time as he complied with the conditions

imposed in LeSieur I. Finally, it asserted that this court had
a legal basis either under its contempt powers or its inherent

authority to regulate the practice of law in this state to

suspend Attorney LeSieur's license immediately after issuing an

order to show cause and receiving a response.

¶8 Without deciding the motion, we issued an order on

October 14, 2011, requiring Attorney LeSieur to file a response

to the OLR's motion and referring the motion to a referee since

there appeared to be potential disputes of fact. Our order

directed the referee to conduct an evidentiary hearing and then

to file a report that contained (1) findings of fact "as to all

relevant facts that relate to Attorney LeSieur's compliance or

noncompliance with the conditions set forth in the court's

[LeSieur I decision]," (2) conclusions of law as to "whether
5
 No. 2007AP2763-D

Attorney LeSieur's conduct has or has not violated those

conditions," and (3) a recommendation as to what sanctions or

discipline, if any, should be imposed on Attorney LeSieur if he

was found to have failed to comply with the conditions in

LeSieur I.

¶9 Reserve Judge William Eich was ultimately appointed as

the referee. The OLR filed two motions before the referee. One

motion sought an order from the referee directing Attorney

LeSieur to sign a new release of medical records. Attorney

LeSieur initially signed such a release on October 27, 2010, as

required by the LeSieur I decision. On October 26, 2011,
however, Attorney LeSieur notified the OLR that he was revoking

that release. The OLR's motion asked the referee to order

Attorney LeSieur to sign a new copy of that same release.

¶10 Attorney LeSieur objected to signing another release

form because he viewed the OLR's release as going beyond what

this court had ordered in LeSieur I and because he viewed the

information already released to have been improperly disclosed

to inappropriate persons/entities, including WisLAP and others

with whom WisLAP had spoken. He also objected that the release

violated both HIPAA and state law because it did not limit the

use of the released information to the present disciplinary

proceeding and because it did not require the return or

destruction of all copies of released records upon completion of

this disciplinary proceeding.

¶11 The OLR's second motion asked the referee to order

Attorney LeSieur to undergo an independent medical examination
6
 No. 2007AP2763-D

(IME) by addiction psychiatrist Dr. Thomas Rowell. The request

for a second, independent examination by a specific addiction

psychiatrist stemmed from WisLAP, which alleged that although

Attorney LeSieur had undergone an AODA evaluation by the

counselor he had already been seeing, in compliance with the

LeSieur I requirement, he was not being sufficiently forthcoming

with his counselor and other health care providers and not being

sufficiently compliant with its monitoring program. It made

this evaluation by an independent addiction psychiatrist one of

the terms of a modified monitoring contract that it demanded

Attorney LeSieur must sign.

¶12 Attorney LeSieur refused to execute the modified

contract because, among other things, he viewed the requirement

of another evaluation by an addiction psychiatrist as beyond the

scope of the LeSieur I decision and as an additional financial
burden he should not have to bear.

¶13 In a decision and order dated February 28, 2012,3 the

referee generally rejected Attorney LeSieur's objections to the

OLR's release form as exceeding the scope of the LeSieur I

decision, with the exception of a single phrase that the referee

deleted. The referee therefore found Attorney LeSieur to be out

of compliance with his obligation to sign a release form and

ordered Attorney LeSieur to execute the release proffered by the

OLR (with the deletion of the single phrase).
3
The order was filed with the clerk of this court on
March 1, 2012. Because the referee referred to his decisions
and orders by the dates on which he signed them, this opinion
will also do so in order to avoid confusion.

7
 No. 2007AP2763-D

¶14 The referee also rejected Attorney LeSieur's arguments

against an order for an IME. Attorney LeSieur contended that

the referee lacked authority to issue such an IME order because

(1) the rule of civil procedure authorizing IMEs, Wis. Stat.

§ 804.10, speaks of "the court in which the action is pending"

as the entity that can order an IME, and (2) an IME was not

mentioned as one of the conditions of practice set forth in the

LeSieur I decision. The referee concluded that since SCR 22.16

gave him the powers of a circuit court trying a civil matter, he

had the authority to order an IME. He also concluded that the

results of an IME would be relevant to whether Attorney LeSieur

had violated the conditions imposed in LeSieur I and to what the

appropriate sanction might be. He therefore ordered Attorney

LeSieur to schedule an appointment with Dr. Rowell.

¶15 When the referee learned that Attorney LeSieur had not

complied with the February 28, 2012 order, he issued a second

order on April 18, 2012, explicitly directing Attorney LeSieur

to execute the revised medical release and to schedule an

appointment with Dr. Rowell by April 25, 2012.

¶16 Attorney LeSieur did not comply with the referee's

orders. Instead, he filed a motion for a protective order in

this court seeking to have the referee's interlocutory orders

declared unlawful and void. In an order dated May 22, 2012,

this court denied the motion as an improper attempt at an

interlocutory appeal. Because Attorney LeSieur's motion

complained that the OLR's release form was still broader than

the language of the court's order in LeSieur I, the May 22, 2012
8
 No. 2007AP2763-D

order further clarified that the release that Attorney LeSieur

must sign should include the records of health care providers or

mental health providers

relating to the prescribing of, the use of, or the
potential use of (1) potentially addictive pain
medications, (2) anti-depressant or anti-anxiety
medications, or (3) mood-altering medications. The
release need not authorize the disclosure of (a)
medical records that were/are not created by treatment
providers who are providing or have provided alcohol-
related or substance abuse-related treatment or
services and (b) medical records that were/are not
related to the prescribing of, the use of, or the
potential use of (1) potentially addictive pain
medications, (2) anti-depressant or anti-anxiety
medications, or (3) mood-altering medications.
The court also directed the referee to give further

consideration to Attorney LeSieur's arguments that the OLR's

release failed to comply with HIPAA and its regulations and with

Wis. Stat. § 146.82.

¶17 The referee invited additional briefing from Attorney

LeSieur on the HIPAA and § 146.82 issues. Attorney LeSieur

argued that compliance with HIPAA required the releases to state

(1) that the parties were prohibited from using or disclosing
his protected health information for any purpose other than the

present disciplinary proceeding, and (2) that all parties

receiving copies of his protected health records must return or

destroy those records at the conclusion of this proceeding.

¶18 In addition, because Attorney LeSieur continued to

refuse to sign the release or to schedule an IME with

Dr. Rowell, the OLR filed a motion asking the referee to

conclude that Attorney LeSieur was in default as a sanction for

9
 No. 2007AP2763-D

his disobedience of the referee's orders and to issue a report

on the basis of the allegations in the OLR's original motion for

a suspension.

¶19 In an order dated July 23, 2012, the referee addressed

both the HIPAA issues and the OLR's motion for default. With

respect to the release form's compliance with HIPAA, the referee

indicated that while he found the OLR's releases to be in

compliance with HIPAA and applicable Wisconsin statutes, he

nonetheless believed that "it would not be inappropriate" to add

Attorney LeSieur's requested brief additions to the release

forms, and he directed the OLR to do so. The referee, however,

found that Attorney LeSieur had failed to offer any reasons to

make additional alterations to the releases. He therefore once

more ordered Attorney LeSieur to execute the release forms, as

modified. He also again ordered Attorney LeSieur to make an

appointment for an IME with Dr. Rowell within 10 business days

and to respond to the OLR's discovery requests.

¶20 With respect to the OLR's default motion, the referee
found that Attorney LeSieur's conduct was indeed egregious,

which would support finding him to be in default. The referee,
however, declined to declare Attorney LeSieur to be in default

or impose other sanctions at that time. Giving Attorney LeSieur
one more chance, the referee held the OLR's default motion in

abeyance "pending [Attorney] LeSieur's compliance with the terms
and conditions [of the July 23, 2012 order]."

¶21 Attorney LeSieur responded to the July 23, 2012 order

in three ways. First, he sent a letter to the referee that
10
 No. 2007AP2763-D

again argued that the referee lacked authority to order the IME.

Second, Attorney LeSieur altered the release form in a number of

significant ways that he believed to be appropriate, executed

the revised form, and then sent it to the OLR. Third, Attorney

LeSieur did respond to the OLR's discovery requests, but the OLR

asserted that several of his answers were nonresponsive to the

actual requests.

¶22 The OLR brought the alteration of the release form and

its belief that some discovery responses were nonresponsive to

the attention of the referee. The OLR asked the referee to take

up again its motion for sanctions, including a declaration of

default, due to Attorney LeSieur's continuing noncompliance with

the referee's orders.

¶23 In light of Attorney LeSieur's response to his

July 23, 2012 order, the referee proceeded to issue a final

report and recommendation on August 16, 2012.

¶24 The referee noted that where a respondent attorney

engages in conduct during a disciplinary proceeding that is
found to be egregious, a referee is warranted, as a sanction for

violation of the referee's orders, to declare the respondent
attorney to be in default and to proceed on the basis of the

OLR's complaint. In re Disciplinary Proceedings Against Kelly,

2012 WI 55, ¶24, 341 Wis. 2d 104, 814 N.W.2d 844; In re

Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286

Wis. 2d 24, 704 N.W.2d 581.

¶25 The referee once more found Attorney LeSieur's

persistent and ongoing refusal to comply with the order of this
11
 No. 2007AP2763-D

court and with the referee's orders to be egregious. In

particular, the referee pointed to the fact that Attorney

LeSieur had willfully disobeyed the referee's three orders to

execute the medical records release form and to schedule an IME

with the designated addiction psychiatrist. The referee further

noted that in the ten months that had passed since the referral

of the matter to the referee, the situation regarding Attorney

LeSieur had remained essentially the same as it had been at the

time of the court's order. Although Attorney LeSieur had been

ordered multiple times to execute the medical records release

form, he still had not done so, except for signing a release

form that he had unilaterally and significantly altered to

comport with his view of what was lawful. The referee therefore

concluded that, based on the allegations contained in the OLR's

motion and accompanying affidavit, which were now established as

true due to Attorney LeSieur's default, Attorney LeSieur had

intentionally failed to comply with the conditions imposed on

his practice in this court's LeSieur I decision and with the

referee's multiple orders.

¶26 Given Attorney LeSieur's noncompliance and the court's

concern for monitoring Attorney LeSieur's alcohol dependence,

the referee made four recommendations to the court:

• Attorney LeSieur's license to practice law in Wisconsin

should be suspended forthwith;

• Because Attorney LeSieur has not yet complied with the

conditions imposed on his practice of law by this court

in LeSieur I, those conditions should be extended for an
12
 No. 2007AP2763-D

additional two years from the date of their expiration or

the date on which Attorney LeSieur's license is

reinstated, whichever is later;

• Attorney LeSieur should be ordered to submit to

monitoring of his compliance with those conditions by

WisLAP, as the OLR's designee; and

• Attorney LeSieur should be ordered to submit to an IME

and evaluation by Dr. Rowell.

¶27 Following the filing of the referee's report, although

there is no rule that specifically authorizes an appeal from a

referee's report in this type of situation, Attorney LeSieur

filed a document labeled an "appeal" from the referee's report.

The "appeal" made essentially the same arguments that Attorney

LeSieur had made to the referee regarding the referee's lack of

authority to order him to sign release forms or undergo an IME.

It also objected to the presence or absence of certain language

in the release forms.

¶28 On September 17, 2012, in light of the referee's
report and recommendation, this court issued an order directing

Attorney LeSieur to show cause why his license should not be
suspended. Attorney LeSieur filed a short response, in which he

essentially argued that this court's procedure for considering
the OLR's motion was a violation of the court's own rules. He

noted this court's comments in In re Disciplinary Proceedings

Against Lister, 2012 WI 102, ¶¶19-22, 343 Wis. 2d 532, 817

N.W.2d 867 (Lister II), where we recognized that there are no

specific rules that address the post-discipline type of motion
13
 No. 2007AP2763-D

filed by the OLR in that case and this one and explained the

basis for referring the OLR's motion to a referee. Attorney

LeSieur argued that because the rules provide a complete

procedure for investigating and prosecuting violations of the

Rules of Professional Conduct for Attorneys, the OLR and the

court were bound to use only that procedure for litigating his

alleged violation of his obligations under LeSieur I. In other

words, he contended that the OLR should have been required to

obtain a finding of cause to proceed from a preliminary review

committee and then should have filed a new disciplinary

complaint rather than filing a sanction motion in the existing

disciplinary case. According to Attorney LeSieur, that

complaint should have been handled in the ordinary manner under

SCRs 22.16-22.17, with a referral to a referee and then an

opportunity for a full appeal. In any event, he asserted that

his appeal of the referee's report and recommendation was still

proper under SCR 22.17 and that this court should review the

referee's report in the context of his appeal (after full

briefing and possibly oral argument).
¶29 First, we will address Attorney LeSieur's arguments

regarding the procedures used to resolve any factual issues
regarding the OLR's motion and to review the referee's report

and recommendation. As an initial matter, while we again
acknowledge that our rules do not contain an explicit procedure

for resolving a motion alleging a violation of a prior

disciplinary order in the same disciplinary proceeding, we

reiterate that the procedure we followed in both Lister II and
14
 No. 2007AP2763-D

this case follows a procedure similar to the one that we

utilized in In re Disciplinary Proceedings Against Hetzel, 124

Wis. 2d 462, 369 N.W.2d 394 (1985). That procedure gave

Attorney LeSieur notice of the allegations against him through

the OLR's motion and allowed Attorney LeSieur the opportunity to

present evidence and argument to a referee regarding what he did

in response to our LeSieur I order and whether his actions

violated his obligations under that order. Although this

court's rules provided the OLR a basis on which it could have

chosen to proceed with an entirely new disciplinary complaint in

a new proceeding, there is no existing rule that expressly

requires it to initiate a separate disciplinary case when

seeking to compel compliance with an order of this court. Thus,

we reject Attorney LeSieur's contention that our referral of the

OLR's motion in the underlying disciplinary proceeding to a

referee was a violation of our rules.

¶30 We also reject Attorney LeSieur's argument that we are

compelled to recognize his "appeal." Rule 22.17 is part of the

set of rules that govern the procedure for handling formal
disciplinary complaints filed by the OLR. Rules 22.11-22.18

provide the procedure that is to be followed by the OLR and a
respondent attorney for litigating and reviewing a formal

complaint in the first instance. Rule 22.17, which authorizes
an appeal, is just one part of that procedure. Thus, the

context makes clear that SCR 22.17 applies to referee reports

that are addressed to an OLR complaint. Attorney LeSieur

already had the benefit of such a full litigation procedure and
15
 No. 2007AP2763-D

full appeal when the OLR's complaint in this case was initially

considered. This court ultimately rejected his appeal, and

imposed a public reprimand and conditions on his continued

practice of law. LeSieur I, 329 Wis. 2d 349, ¶¶15, 18, 20-24.

¶31 The OLR filed a motion in the same disciplinary

proceeding seeking the imposition of a sanction due to Attorney

LeSieur's failure to comply with the conditions we imposed.

This was a motion in an existing proceeding and not a new

complaint. Thus, the full procedure of SCRs 22.11-22.18 did not

apply by its terms. Although we referred the motion to a

referee for the completion of certain tasks, which mirrored the

way in which a complaint would be handled, that does not mean

that the report the referee filed in response to our referral

order gives rise to a right to appeal under SCR 22.17. Indeed,

because we noted this fact in Lister II, we issued an order in
that proceeding that afforded the parties an opportunity to

object to the referee's report. 343 Wis. 2d 532, ¶23. We did

essentially the same thing in this case when we issued an order

to show cause to Attorney LeSieur. He was given notice of the

referee's findings by receiving a copy of the referee's report

and an opportunity to be heard regarding why the referee's

findings should not lead to a suspension of his license to

practice law in Wisconsin.

¶32 We now turn to our review of the referee's report. As

in other review situations, we will affirm the referee's

findings of fact unless they are clearly erroneous, but we will

review the referee's conclusions of law on a de novo basis.
16
 No. 2007AP2763-D

Lister II, 343 Wis. 2d 532, ¶23; see also In re Disciplinary

Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71,

740 N.W.2d 125. "We will determine the appropriate type and

level of sanction or discipline given the particular facts of

the case, independent of the referee's recommendation, but

benefiting from it." Lister II, 343 Wis. 2d 532, ¶23; see also

In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44,

261 Wis. 2d 45, 660 N.W.2d 686.

¶33 Our review of this case, however, is framed by the

fact that the referee declared Attorney LeSieur to be in default

due to his repeated refusal to comply with the orders of the

referee. Thus, the issues we review are limited to whether the

referee erroneously exercised his discretion in finding that

Attorney LeSieur had repeatedly disobeyed the referee's orders

and therefore whether a declaration of default and the resulting

disregard of his substantive arguments were proper. See Martin
v. Griffin, 117 Wis. 2d 438, 344 N.W.2d 206 (Ct. App. 1984)

(limiting review of default judgment entered following failure

to answer to whether trial court properly exercised its

discretion in granting default and determining that defendant's

substantive arguments had been waived by default).

¶34 In this instance, the referee declared Attorney

LeSieur to be in default, disregarded his substantive response

to the OLR's motion, and proceeded on the basis of the facts

alleged in the OLR's motion and supporting materials due to

Attorney LeSieur's conduct during the consideration of the

motion. This is akin to a circuit court granting a judgment by
17
 No. 2007AP2763-D

default in a civil case because the defendant failed to obey

court orders or statutory requirements or to provide discovery.

See, e.g., Wis. Stat. §§ 802.10(7) (violation of scheduling or

pretrial order), 804.12 (failure to provide discovery), and

805.03 (failure to prosecute action or to comply with procedural

statutes). We have held that referees in disciplinary cases may

similarly declare a respondent attorney to be in default when

the attorney has disobeyed the referee's scheduling or pretrial

orders, violated applicable rules of procedure, or failed to

comply with his/her discovery obligations in the disciplinary

proceeding. See, e.g., In re Disciplinary Proceedings Against
Kelly, 2012 WI 55, ¶21, 341 Wis. 2d 104, 814 N.W.2d 844; In re

Disciplinary Proceedings Against Semancik, 2005 WI 139, ¶26, 286

Wis. 2d 24, 704 N.W.2d 581; In re Disciplinary Proceedings

Against Haberman, 128 Wis. 2d 390, 391-92, 395, 382 N.W.2d 439

(1986). Because of the drastic nature of such a sanction,

however, as in civil cases, we have required the referee to find

that the respondent attorney's actions were "egregious" or "in

bad faith" before declaring a respondent attorney to be in

default. Kelly, 341 Wis. 2d 104, ¶22 (citations omitted). An

"extreme, substantial and persistent" failure to follow a

referee's orders without a clear and justifiable excuse can

constitute egregious conduct. See Industrial Roofing Serv. v.

Marquardt, 2007 WI 19, ¶43, 299 Wis. 2d 81, 726 N.W.2d 898

(citations omitted).

¶35 In this case the referee found that Attorney LeSieur's

repeated violation of his "pretrial" orders constituted
18
 No. 2007AP2763-D

"egregious" conduct that warranted disregarding his response to

the motion and proceeding on the basis of the allegations in the

OLR's motion and supporting documents. Generally, we will

sustain such a finding and sanction "if there is a reasonable

basis for the circuit court's [or referee's] determination that

the noncomplying party's conduct was egregious and there was no

'clear and justifiable excuse' for the party's noncompliance."

Johnson v. Allis Chalmers Corp., 162 Wis. 2d 261, 276-77, 470

N.W.2d 859 (1991), overruled on other grounds by Industrial

Roofing, 299 Wis. 2d 81, ¶61; see also id., ¶41 (decision to

impose sanction in standard civil action and the choice of which

sanction to impose are reviewed for erroneous exercise of

discretion).4

¶36 The referee's finding of egregiousness and declaration

of default is not an erroneous exercise of discretion in this

case. The evidence is clear that Attorney LeSieur has

repeatedly and willfully refused to comply with the terms of

orders issued both by the referee and this court. In LeSieur I,

this court ordered Attorney LeSieur to execute a release for

certain categories of information. He did execute such a

release, but it is undisputed he then revoked that release

4
There is no issue in this case regarding whether an
attorney's conduct can be imputed to a party for purposes of
imposing a sanction because Attorney LeSieur has represented
himself throughout this proceeding. Cf. Industrial Roofing, 299
Wis. 2d 81, ¶61 (erroneous exercise of discretion to impute
attorney's conduct to client and enter a sanction of dismissal
where client is blameless).

19
 No. 2007AP2763-D

approximately one year later, one year prior to the expiration

date for the release established by this court. The referee

ordered him on two occasions to sign a new copy of the release,

from which one potentially problematic phrase had been removed.

Attorney LeSieur, however, did not execute the release in

compliance with either order. He did not execute the release

even after this court denied his motion for interlocutory review

and directed the referee to proceed with the matter and give

further consideration to Attorney LeSieur's arguments based on

HIPAA and Wis. Stat. § 146.82. Attorney LeSieur raised only two

claims that the release form did not comply with those privacy

provisions of state and federal law. In an effort to address

Attorney LeSieur's concerns, the referee directed the OLR to add

language to the release form that addressed Attorney LeSieur's

two requests and directed him yet again to execute the release

as now revised. Even after obtaining what he wanted, Attorney

LeSieur still disregarded the referee's third order and signed

the release only after substantially modifying it to his liking.
¶37 Attorney LeSieur's noncompliance did not end with his

refusal to execute a release form as ordered. There is no
dispute that he also repeatedly refused to undergo an

independent medical examination by an addiction specialist. The
referee's orders to undergo such an examination were clear, but

Attorney LeSieur willfully disobeyed the orders. While he may
not have agreed with the orders, Attorney LeSieur is not

authorized to determine which orders he will obey and which he

is entitled to flaunt or modify to his liking. Especially once
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this court had rejected his interlocutory appeal, he should have

understood that he had no choice but to comply with the orders

of the referee. He continued, however, to refuse to undergo an

IME, which supports a presumption that he has not been in

compliance with his obligations under our order in LeSieur I and

lacked a meritorious defense to the OLR's motion.

¶38 Finally, we note that the referee found in one of his

interlocutory orders that Attorney LeSieur had failed to comply

with his obligations to respond to the OLR's discovery requests

and that he had not provided a lawful basis for his

noncompliance. His failure to provide proper discovery

responses also warrants a presumption that he lacked a defense

to the OLR's motion.

¶39 Attorney LeSieur does not deny that these events

happened or that he chose not to comply with the referee's

orders. An attorney is not free to disregard the orders issued

by a referee in an attorney disciplinary proceeding, even when

the attorney believes that the referee's orders are invalid or

require modification. Only this court may declare a referee's
orders invalid or excuse an attorney from complying with them.

We see no reason to invalidate the orders issued by the referee
in this matter. Attorney LeSieur's repeated and willful failure

to comply with those orders is therefore egregious and merits
finding him to be in default with respect to the OLR's motion.

We therefore agree with the referee that the OLR's allegations

that Attorney LeSieur failed to comply with the provisions of

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this court's order in LeSieur I are accepted as true by virtue

of Attorney LeSieur's default.

¶40 We turn now to the appropriate sanction that should be

imposed as a result of Attorney LeSieur's noncompliance with our

orders. Attorney LeSieur has been convicted on three occasions

of operating a motor vehicle while intoxicated and was arrested

on suspicion of that offense on two other occasions that did not

result in valid convictions. Attorney LeSieur's record

indicates a potential problem with alcohol and other addictive

or mood-altering medications. He claimed during the initial

disciplinary proceeding that he has not consumed alcohol since

2006. If that is accurate, he is to be commended. His

refraining from alcohol indicates some recognition that he has

problems in this area that require affirmative steps. On the

other hand, his actions since the release of LeSieur I indicate
repeated attempts to thwart the monitoring of his condition by

the OLR and its designee. One who is truly eager to overcome

any problems with alcohol or mood-altering medications would

welcome assistance, but Attorney LeSieur has frustrated the

efforts of this court, the referee, and WisLAP to ensure that he

remains on a productive path. This is a troubling pattern.

¶41 We simply cannot tolerate such disobedience of our

orders. Accordingly, we will suspend Attorney LeSieur's license

until he complies with the orders of this court. To leave no

room for doubt or argument, we will clarify the nature of the

release Attorney LeSieur must now sign and we will expressly

require him to undergo an independent medical examination by
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Dr. Thomas Rowell or another addiction psychiatrist or other

treatment provider designated by the OLR. Given Attorney

LeSieur's failure to comply thus far, the conditions that we

imposed in LeSieur I and those we add in this opinion shall be

extended to remain in effect for a period of two years from the

date on which Attorney LeSieur's license is reinstated.

¶42 We now turn to the issue of costs. The OLR has

indicated that the costs of this supplemental proceeding due to

Attorney LeSieur's noncompliance were $8,987.16 as of

September 6, 2012. We find no reason to depart from our general

practice of requiring a respondent attorney, whose conduct

caused the OLR to bring this proceeding, to pay the full costs

of the proceeding. Attorney LeSieur's conduct led to the filing

of the OLR's motion and the resulting proceedings. He should

therefore be required to pay the associated costs.

¶43 IT IS ORDERED that the license of Barry LeSieur to

practice law in Wisconsin is suspended, effective May 20, 2013,

until such time as he demonstrates full compliance with the

following conditions and until further order of the court:
(A) Barry LeSieur shall sign reciprocal releases of

confidentiality. Such release or releases shall authorize the
disclosure of Barry LeSieur's health records possessed by each

treatment provider who is providing or has provided alcohol-
related or substance abuse-related treatment or services to

Barry LeSieur since September 30, 2000, and shall also authorize

the disclosure by health care providers or mental health

providers of health records relating to the prescribing of, the
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use of, or the potential use of (1) potentially addictive pain

medications, (2) anti-depressant or anti-anxiety medications, or

(3) mood-altering medications. Such release or releases shall

authorize disclosure to all other health care or mental health

providers covered by the release or releases and to the Office

of Lawyer Regulation and those persons or entities that it

designates to assist it in monitoring Barry LeSieur's compliance

with his obligations under this order. The Office of Lawyer

Regulation and its designees shall maintain as confidential all

information or documents received pursuant to such release or

releases and shall use such information or documents for the

purpose of monitoring Attorney LeSieur's compliance with the

obligations imposed on him by the orders of this court. The

release or releases required by this paragraph shall remain in

effect for a period of two years from the date on which Attorney

LeSieur's license to practice law in Wisconsin is reinstated by

this court. The release or releases to be signed by Attorney

LeSieur shall comply with this paragraph and may be in a form
substantially similar to the release form attached as Exhibit 2

to the referee's report filed on August 27, 2012, without any of
the alterations made to that release form by Attorney LeSieur.

The release form shall be modified to include the expiration
date identified above. Attorney LeSieur must sign the release

or releases in the form provided to him by the Office of Lawyer
Regulation and may not make any modifications or alterations to

the language of the release. For purposes of the return or

destruction of disclosed medical records, this disciplinary
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proceeding will be completed at such time as Attorney LeSieur is

no longer subject to any conditions on his practice of law in

Wisconsin.

(B) Barry LeSieur shall schedule and undergo an

independent medical examination and evaluation by Dr. Thomas

Rowell or another addiction psychiatrist or other treatment

provider designated by the Office of Lawyer Regulation. The

addiction psychiatrist or other treatment provider who performs

this examination and evaluation shall provide to the Office of

Lawyer Regulation a written report, which assesses Barry

LeSieur's substance abuse history and current status and makes

specific recommendations for Barry LeSieur's continuing

treatment or maintenance. This written report shall be

maintained by the Office of Lawyer Regulation and its designees

as confidential pursuant to the release or releases described in

the preceding paragraph. If Attorney LeSieur attempts to

schedule an appointment with Dr. Rowell and he is unable to see

Attorney LeSieur within 60 days after the date of this order,
the Office of Lawyer Regulation shall designate another

addiction specialist or treatment provider who will be able to
conduct the independent examination and evaluation within 60

days.
(C) Barry LeSieur shall enter into the amended monitoring

contract with the Wisconsin Lawyers Assistance Program as
previously submitted to him by that program.

¶44 IT IS FURTHER ORDERED that prior to seeking

reinstatement and continuing for a period of two years following
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the reinstatement of his license, Barry LeSieur shall, at his

own expense, submit to random alcohol and substance abuse

screenings, directed and monitored by the Office of Lawyer

Regulation and its designee.

¶45 IT IS FURTHER ORDERED that Barry LeSieur shall comply

with all written recommendations set forth in the original AODA

evaluation and with all written recommendations set forth in the

written evaluation report that results from the independent

medical examination described in ¶43(B) of this opinion and

order.

¶46 IT IS FURTHER ORDERED that the conditions on Barry

LeSieur's practice of law in Wisconsin set forth in this opinion

shall remain in effect for a period of two years from the date

on which this court reinstates Barry LeSieur's license to

practice law.

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

of this order, Barry LeSieur shall pay to the Office of Lawyer

Regulation the costs of this proceeding.
¶48 IT IS FURTHER ORDERED that Barry LeSieur shall comply

with the provisions of SCR 22.26 concerning the duties of a
person whose license to practice law in Wisconsin has been

suspended.

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