Matter of Disciplinary Proceedings Against Wood

WILLIAM A. BABLITCH, J.

(dissenting). I am troubled by both the majority opinion and the concurring opinion and accordingly, I dissent.

The basic flaw with the majority opinion is that it fails to deal with the problem underlying this disciplinary proceeding, namely Attorney Wood’s alcoholism. Attorney Wood, having been found to have discussed a divorce proceeding with an opposing party without the presence or consent of her attorney, in violation of SCR 20.38(1), and to have misrepresented facts to her concerning matters pertinent to the divorce proceeding, in violation of SCR 20.04(4), is suspended from the practice of law for a sixty-day period. After this period of suspension, he will be allowed to return to the active practice of law with no restraints, with no conditions, with no supervision. This unsupervised reinstatement will occur despite Attorney Wood’s admission that he is an alcoholic, despite the uncontroverted evidence in the record that Attorney Wood is an alcoholic, and despite the fact that alcoholism by its basic nature is characterized by a significant rate of recidivism.

SCR 21.03(5) provides: “Discipline for misconduct is not intended as punishment for wrongdoing but is for the protection of the public. . . .” The discipline meted out by the majority fails to do this. By failing to impose conditions on Attorney Wood’s future practice, at least *623somewhat along the lines recommended by Dr. Mann, the majority opinion ignores the substantial chance for recurrence of the illness, and consequently, fails to provide adequate protection to the public.

The majority, in explaining the rationale behind its decision, repeatedly emphasizes that the referee made no finding that Attorney Wood’s misconduct was caused by his alcoholism. While that is correct, it is equally true that the referee was completely silent as to causation. However, the record itself is not at all silent as to causation. It is uncontroverted in the record that: 1) Attorney Wood is an alcoholic; and 2) “[t]he behavior exhibited by Mr. Wood on th[e] occasion [of the misconduct] was, in my opinion, clearly and directly related to his acute alcoholism.” (Emphasis added.) Medical Report, Dr. Mann. Such was the unrebutted testimony of Dr. George A. Mann, M.D., Vice President, Chemical Dependency Services, St. Mary’s Hospital/Rehabilitation Center, Minneapolis, Minnesota.1

Dr. Mann’s Medical Report, again uncontroverted, also says: “Since alcoholism by its basic nature is characterized by a significant rate of recidivism, it would be critical for an individual with Mr. Wood’s history to put into place a system of safeguards that would neutralize *624or substantially reduce the statistical chances for a recurrence of the acute stages of his illness.” The majority fails to establish safeguards that would help to ensure Attorney Wood’s rehabilitation, and therefore does not adequately protect the public from the danger of additional alcohol related professional misconduct. That failure is most troubling to me.

The concurrence poses a problem of a different nature. The concurrence accepts the conclusion that Attorney Wood’s license be suspended for a sixty-day period but urges that the suspension period be followed by a 3-year period of strict conditional practice. The conditions adopted by Justice Callow are those which were suggested by Dr. Mann. See concurrence at pp. 619, 620. Imposing a lengthy period of conditional practice provides adequately for the protection of the public as demanded by our own rules. SCR 21.03 (5). However, what it would also do is discourage lawyers who have engaged in unprofessional conduct caused by their alcoholism from coming forward, admitting to their alcoholism, and receiving treatment. Clearly, if that is the way this court deals with cases involving misconduct caused by alcoholism, we will encourage lawyers who are alcoholic and are subject to disciplinary proceedings to hide and deny their alcoholism. A lawyer’s honesty in this regard could subject him or her to both the normal disciplinary suspension (here sixty days) and conditional practice thereafter.

The problem of dealing with misconduct caused by alcoholism is very complex. To its great credit, the State Bar of Wisconsin through its Board of Governors has recently doubled its budget for Lawyers Concerned for Lawyers, an organization formed to aid and assist alcoholic lawyers and their families. Progress is being made, the levels of consciousness are being raised.

Misconduct caused by alcoholism cases are going to continue to come before us. With close to 14,000 attor*625neys licensed to practice in this state, it is fair to assume that these cases will not go away.

With the growing awareness of this disease, its horrible consequences, and most positively its susceptibility to successful treatment, we should begin to seriously consider alternative and consistent methods of dealing with these cases. Our goal should be to treat cases involving misconduct caused by alcoholism in such a way as to accomplish a number of objectives. Some of those objectives should be: 1) to protect the public, the courts and the legal profession, consistent with SCR 21.03(5) ; 2) to encourage the rehabilitation of alcoholic attorneys so that they can return to a productive professional and personal life; and 3) to assure the public that we are not simply white-washing the conduct but are rather attempting to deal with a most difficult problem in an enlightened and comprehensive manner, intended to protect the interests of all concerned.

Consistent with these objectives, there is a different approach to discipline involving misconduct caused by alcohol that we should consider. When alcoholism is shown to be causative, we should impose the normal discipline, but with the discipline being stayed; the rigid conditions for continuing practice should be applied along the lines suggested in Justice Callow’s concurring opinion which would include periodic reports of satisfactory progress from the medical authorities, oversight of the legal practice by other competent attorneys in the area, and, of course, full compliance with the code of professional responsibility. See Petition of Johnson, 322 N.W.2d 616 (Minn. 1982); Tenner v. State Bar of California, 28 Cal. 3d 202, 168 Cal. Rptr. 333, 617 P.2d 486 (1980); Matter of Walker, 254 N.W.2d 452 (S.D. 1977). The failure to comply with any of the conditions would result in the immediate imposition of the discipline originally imposed. See Morehouse, In Re Driscoll: Illinois’ *626New Approach In The Discipline of Alcoholic Attorney Misconduct, 31 De Paul L. Rev. 433 (1982).

I would apply this discipline in this case notwithstanding the absence of a finding by the referee that the misconduct was caused by Attorney Wood’s alcoholism. Given that the referee made no finding whatsoever, and given that the uncontradicted, uncontroverted evidence in this record clearly demonstrates the causative nature of Attorney Wood’s alcoholism to the misconduct, a finding by this court of alcoholism causation is warranted. Cf. Connecticut General Life Ins. Co. v. DILHR, 86 Wis. 393, 404-05, (1979). I would suspend Attorney Wood’s license to practice law for sixty days, stay the suspension, and afford him the opportunity to continue to practice law under the type of conditions referred to above.

This approach to discipline may not be the best answer or the only answer. There may well be other conditions or alternative disciplines that would better provide the needed motivation to the alcoholic attorney. But at the very least this approach affords motivation to other alcoholic lawyers similarly involved to come forward and deal with the disease; it provides future protection to the public against further unprofessional conduct by Attorney Wood short of prohibiting his practice altogether; it may provide him with motivation to continue to treat his alcoholism; and it will provide assurance to the public that we are in fact dealing seriously and positively with this very complex problem.

I respectfully dissent.

Dr. Mann’s qualification testimony was as follows:

“[Since 1968] I have, during those years, been involved in all phases of treating alcoholics and also chemically dependent people. I have been the Medical Director of the treatment program during those years. I have done private medical practice in chemical dependency. I have served as the consultant to a wide variety of the hospitals. I was the Medical Director for some years of the Johnson Institute, which is an organization exclusively dedicated to the care, education of chemical dependent people and their families. I served on the board of that organization. I’m currently a consultant to Beth Israel Hospital in New York, Our Lady of Lourdes in Pasco, Washington, St. Joseph’s in Tucson. I’ve served on a number of committees of the Minnesota State Medical Association.”