Attorney disciplinary proceeding; attorney’s license suspended.
Attorney Warren W. Wood appeals from the recommendation of the referee that his license to practice law in Wisconsin be suspended for sixty days for having communicated directly with an adverse party without the knowledge or consent of that person’s attorney and for having made misrepresentations to the adverse party concerning a pending divorce action in which he represented the husband. Attorney Wood admitted having engaged in unprofessional conduct but attributed that conduct to alcoholism, which he argues should mitigate the seriousness of that misconduct and warrant the imposition of less severe discipline, including the imposition of conditions on his continued practice of law which specifically address his alcoholism. Because the referee *612made no finding that the misconduct was caused by Attorney Wood’s alcoholism, we determine that a sixty-day suspension of Attorney Wood’s license to practice law is appropriate discipline under the circumstances of this case.
Attorney Wood was admitted to practice law in Wisconsin in 1973, and practices in New Richmond. The facts in this proceeding are not disputed. In February of 1983, he was retained by a close personal friend to represent him in a divorce action which he had commenced against his wife. On June 2, 1983, Attorney Wood, his client, his client’s wife and her attorney held a settlement conference at which a tentative agreement was reached concerning custody of the parties’ minor children and property division. It was then agreed that legal custody of the children would be shared by both parents, with their physical custody remaining with the mother.
In the late hours of June 9, 1983, Attorney Wood appeared at the wife’s home, asking to speak to his client. The parties to the divorce had been living together occasionally while the divorce was pending, although the husband maintained a separate residence. The client was not there, and the woman allowed Attorney Wood to enter her home at his request. The two of them had a conversation during which Attorney Wood made sexual advances, which were rejected.
Attorney Wood left the house momentarily to get cigarettes from his car, and he returned to the home and began discussing the divorce case. He told the woman that he had hired a private investigator from whom he had obtained evidence on her having had an extramarital affair. He told her that he had paid the investigator $3,800 and stated that the investigator had been following her and had taken pictures of her. Attorney Wood also told her that her telephone had been tapped and that he had a file some three or four inches thick on her. He stated that it was his client’s and his intention to obtain *613custody of the partios’ children for the husband and suggested that she was not a fit person to have their custody. Attorney Wood’s visit lasted about one hour, terminating when Attorney Wood left voluntarily.
Attorney Wood proceeded to his client’s apartment and told his client that he had visited his wife and made sexual advances to her. Following that conversation, the client went to his wife’s home and assured her that there was no understanding between him and Attorney Wood to establish her unfitness as a parent in order to obtain custody of their children. On prior occasions the client had told his wife that there was a private investigator checking on her, tapping her telephone and taking pictures.
Attorney Wood withdrew from representing his client in the divorce action six days after this incident, and the parties ultimately divorced. On September 19, 1983, Attorney Wood telephoned the wife, again stating that he wished to speak to her husband, and he apologized to her for his actions of the night of June 9. He also told her that the statements he had made to her concerning his efforts to obtain evidence of her unfitness were untrue.
In this disciplinary proceeding, Attorney Wood contended that his conduct was directly caused by his alcoholism. He also claimed to have been intoxicated when he visited his client’s wife. However, the woman testified that during his visit she observed no signs that he had been drinking. The referee, the Honorable Rodney Lee Young, Reserve Judge, found that Attorney Wood had drunk alcoholic beverages prior to and after playing in a softball game, after which he visited his client’s wife.
Evidence was introduced at the hearing concerning Attorney Wood’s alcoholism and his efforts at rehabilitation. Attorney Wood completed a four-week outpatient alcohol rehabilitation treatment program at St. Mary’s Hospital in Minneapolis in February, 1983, but he resumed drinking the following April. He voluntarily *614reentered treatment at St. Mary’s as an outpatient on June 23, 1983, following the incident with the wife of his client, and that treatment continued through July, 1983.
On September 19, 1983, Attorney Wood resumed drinking, and it was then that he telephoned his former client's wife, apologized for his conduct in June and told her that in fact he had not hired an investigator or compiled evidence against her. On September 22, 1983, Attorney Wood resumed alcohol rehabilitation after-care and has been attending Alcoholics Anonymous meetings since that time.
Dr. George A. Mann, vice-president of St. Mary’s Hospital and Rehabilitation Center, and David Steineck, a drug and alcohol counselor at St. Mary’s, each of whom had treated Attorney Wood for alcoholism beginning in January, 1983, testified that his conduct was the result of an alcoholism-induced intoxication. They testified that Attorney Wood does not behave in an unethical, illegal, or immoral way unless he is intoxicated and, further, that be would not have acted as he did with his client’s wife had he not been under the influence of alcohol.
In the course of the disciplinary proceeding and on appeal, Attorney Wood has taken the position that his alcoholism is and should be considered a mitigating factor, not a defense to the charges of unprofessional conduct. He argued that the disciplinary process should be used constructively to rehabilitate an attorney who, in good faith, seeks to control the disease which caused the misconduct. Rather than prohibiting the alcoholic’s practice of law, he argued, the court should impose discipline which encourages the alcoholic attorney’s rehabilitation from alcoholism.
It is Attorney Wood’s position that his alcoholism should be considered no less a mitigating factor than undergoing psychiatric treatment, Disciplinary Proceedings Against Pump, 109 Wis. 2d 588, 326 N.W.2d 773 *615(1982), and that a 60-day suspension of his license would be inconsistent with discipline imposed in a proceeding in which the attorney was found to have been medically incapacitated by reason of alcoholism. Medical Incapacity Proceedings Against Gavic, 116 Wis. 2d 374, 342 N.W.2d 244 (1984).
Attorney Wood’s reliance on attorney medical incapacity proceedings is misplaced. Our attorney professional responsibility rules provide that an attorney’s license to practice law is subject to suspension or conditions for a medical incapacity “upon a finding that because of mental infirmity, mental illness or addiction to intoxicants or drugs, the attorney should not be permitted to practice law because of the danger to the interests of his or her clients and the public.” SCR 21.07(2). There has been no showing here that Attorney Wood’s practice of law was adversely affected by his alcoholism, save for the isolated instance of misconduct with the wife of a personal friend whom he was representing. The referee explicitly found that such misconduct did not qualify as medical incapacity.
Attorney Wood also attempted to distinguish his case from two other attorney disciplinary proceedings in which we rejected alcoholism in mitigation of misconduct for the reason that no causal connection had been established between the attorney’s alcoholism and the misconduct. Disciplinary Proceedings Against Glasschroeder, 113 Wis. 2d 672, 335 N.W.2d 621 (1983), and Disciplinary Proceedings Against Peckham, 115 Wis. 2d 494, 340 N.W.2d 198 (1983). In support of his position Attorney Wood relied on the expert testimony adduced at the hearing that his misconduct was caused by alcoholism. However, the referee made no finding that Attorney Wood’s misconduct was the result of alcoholism.
On appeal from the report and recommendation of a referee in an attorney disciplinary proceeding we do not conduct a de novo review; we accept the referee’s findings, *616provided they are not clearly erroneous. Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984). Here the referee did not find that Attorney Wood’s misconduct was not caused by alcoholism ; neither did he find that it was: he made no finding whatsoever on that issue. Consequently, we will not make a finding that the referee could have made on the evidence before him but did not.
Attorney Wood also argued that in lieu of suspending his license, we should consider imposing conditions on his continued practice of law such as we imposed in Medical Incapacity Proceedings Against Fleming, unreported, Case No. 83-1582-D, decided September 1, 1983. The conditions suggested are those proposed by Dr. Mann in a medical report introduced into evidence at the disciplinary hearing. Those conditions include complete abstinence from alcohol, continued weekly attendance at Alcoholics Anonymous meetings, monthly contact with Lawyers Concerned for Lawyers, attendance at after-care and post-treatment sessions as recommended by St. Mary’s, continued counselling sessions with Dr. Mann, regular medical examinations, and periodic reports of Attorney Wood’s progress in rehabilitation to the Board of Attorneys Professional Responsibility. Attorney Wood also suggested that we consider conditioning his continued practice on supervision of that practice by another attorney.
We are urged to consider alcoholism as a disease and to show leniency toward an attorney who has engaged in unprofessional conduct as a result of alcoholism. Where an attorney has established sincere rehabilitation efforts and an ability to control the disease, we are asked not to suspend his license as discipline for misconduct but to impose conditions reasonably calculated to assist in his rehabilitation.
*617Alcoholism does not excuse an attorney’s unprofessional conduct. An attorney found to have violated the Code of Professional Responsibility, SCR chapter 20, is subject to discipline even though that attorney was suffering from alcoholism at the time of the misconduct. Nevertheless, in appropriate circumstances, the disease of alcoholism may properly be considered in mitigation of the severity of the discipline to be imposed for misconduct.
However, the case before us does not present that issue. While the referee specifically found that Attorney Wood had taken a course of treatment for alcoholics at St. Mary’s Rehabilitation Center six months prior to the time of his misconduct and found that Attorney Wood drank some alcoholic beverages during the evening when his misconduct occurred, he made no finding that the misconduct was caused by alcoholism. Further, the referee made no finding that Attorney Wood was, in fact, suffering from alcoholism, although in his report to the court he made observations concerning Attorney Wood’s drinking, specifically, that immediately following the incident with his client’s wife, Attorney Wood “admitted of his misdeeds and very convincingly undertook ways to combat his drinking habits and to guard against a repetition of such non-professional conduct.”
In his observations, the referee also stated that he had given careful consideration to the expert testimony concerning Attorney Wood’s alcoholism and rehabilitation efforts and considered it in mitigation. However, on the state of this record, we determine that alcoholism is not a mitigating factor because there has been no finding that the misconduct was caused by alcoholism. Indeed, there has been no finding that Attorney Wood was suffering from alcoholism at the time of the misconduct, notwithstanding the referee’s explicit consideration of the expert testimony on that issue.
*618We are not adverse to imposing appropriate conditions on the continued practice of law of an attorney whose misconduct was caused by alcoholism and who has demonstrated sincere and successful efforts at rehabilitation, but that is not the case before us. The referee found that, after consuming an unspecified quantity of alcoholic beverages, Attorney Wood discussed a divorce proceeding with an opposing party without the presence or consent of her attorney, in violation of SCR 20.38(1), and misrepresented facts to her concerning matters pertinent to the divorce proceeding, in violation of SCR 20.04(4). There was no finding that this misconduct was caused by alcoholism. Consequently, while we accept the referee’s findings of fact and conclusions of law, we do not consider alcoholism a mitigating factor here, as the referee did.
We agree with the referee that a suspension of Attorney Wood’s license to practice law is appropriate discipline under the circumstances of this case and we conclude that Attorney Wood’s misconduct warrants a sixty-day suspension of his license. We accept the referee’s recommendation that Attorney Wood be required to pay the costs of the disciplinary proceeding.
It is ordered that the license of Warren W. Wood to practice law in Wisconsin is suspended for a period of sixty days, commencing April 1, 1985.
It is further ordered that Attorney Warren W. Wood comply with the provisions of SCR 22.26 concerning the requirements of a person whose license to practice law in Wisconsin has been suspended.
It is further ordered that within ninety days of the date of this order Attorney Warren W. Wood pay to the Board of Attorneys Professional Responsibility the costs of this disciplinary proceeding in the amount of $5,821.30, provided that if the costs are not paid within the time specified and absent a showing by Attorney Wood of his inability to pay those costs within that time, the license *619of Attorney Warren W. Wood to practice law in Wisconsin shall be suspended until further order of the court.
It is further ordered, pursuant to the referee’s recommendation, that the medical report admitted into evidence as Exhibit 9 shall be sealed, marked confidential, and subject to review only by order of the court.