Office of Lawyer Regulation v. Philip A. Shepherd

2017 WI 66

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP737-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Philip A. Shepherd, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Philip A. Shepherd,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST SHEPHERD

OPINION FILED: June 23, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
CONCURRED AND
DISSENTED: ABRAHAMSON, J. concurs and dissents, joined by
A.W. Bradley, J.
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:
 2017 WI 66
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP737-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Philip A. Shepherd, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant,
JUN 23, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
Philip A. Shepherd,

Respondent.

ATTORNEY disciplinary proceeding. Attorney publicly

reprimanded.

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

B. Murphy concluding that Attorney Philip A. Shepherd committed

ten counts of misconduct as alleged in the Office of Lawyer

Regulation's (OLR) complaint. The referee determined that a

public reprimand was appropriate discipline for Attorney

Shepherd's misconduct. The referee also recommended that

Attorney Shepherd should be directed to pay restitution in two
 No. 2016AP737-D

client matters and should be assessed the full costs of the

proceeding, which are $1,887.96 as of March 8, 2017.

¶2 After careful review of the matter, we conclude that

the referee's findings of fact are supported by clear,

satisfactory, and convincing evidence. We adopt the referee's

conclusions of law. We agree that the appropriate discipline

for Attorney Shepherd's misconduct is a public reprimand, and we

agree that Attorney Shepherd should be required to pay

restitution as recommended, and shall bear the full costs of

this proceeding.

¶3 Attorney Shepherd graduated from law school in

Minnesota in 1991 and was admitted to practice law in Wisconsin

in 2006. He practiced in the Fond du Lac area. He has no prior

discipline but his Wisconsin law license is presently suspended.

On October 31, 2014, the State Bar of Wisconsin administratively

suspended Attorney Shepherd's Wisconsin law license for failure

to comply with trust account certification requirements. On

June 2, 2015, the Board of Bar Examiners (BBE) administratively
suspended Attorney Shepherd's Wisconsin law license for failure

to comply with continuing legal education requirements. On

October 31, 2015, the State Bar of Wisconsin administratively

suspended Attorney Shepherd's Wisconsin law license for failure

to pay bar dues.

¶4 On March 7, 2016, this court temporarily suspended

Attorney Shepherd's Wisconsin law license for his failure to

cooperate in an OLR investigation into conduct that resulted in

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 No. 2016AP737-D

Counts nine and ten of the disciplinary complaint in this

proceeding.

¶5 On April 12, 2016, the OLR filed a ten-count complaint

against Attorney Shepherd alleging misconduct involving three

client matters as well as failure to cooperate with the OLR.

¶6 The first four counts of the OLR complaint involve

Attorney Shepherd's representation of Jean and James B., a

married couple, who hired Attorney Shepherd to complete a health

care power of attorney for Jean's mother. They did not sign a

written fee agreement. Attorney Shepherd completed the

paperwork and Jean gave Attorney Shepherd a $200 check, which he

deposited into his business account. On December 23, 2013, Jean

met with Attorney Shepherd to begin drafting guardianship

paperwork for her mother and paid Attorney Shepherd $2,000 in

advanced fees; she did not sign a written fee agreement.

Attorney Shepherd deposited the $2,000 into his business

account. Later that day, Jean learned that a guardianship would

not be necessary. She contacted Attorney Shepherd and told him
not to proceed with the guardianship work.

¶7 In March of 2014, James asked Attorney Shepherd to

draft an estate plan for his family and to form a limited

liability corporation (LLC). At that time, Attorney Shepherd

had not refunded any fees to these clients or sent them an

accounting. They indicated they wished to use their previously

paid funds for this legal work. Attorney Shepherd did not

prepare a fee agreement for this work. He completed the LLC and
estate work in April 2014. On August 4, 2014, the clients
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 No. 2016AP737-D

requested an accounting and a refund of any unearned fees. When

Attorney Shepherd failed to provide an accounting or a refund,

the clients filed a grievance.

¶8 On March 2, 2015, Attorney Shepherd created and

submitted to the OLR an invoice showing $1,577.50 of work

completed on the guardianship, estate plan, and LLC matters,

leaving $622.50 in unearned fees. Attorney Shepherd has not

refunded any unearned fees to these clients.

¶9 The OLR complaint alleged four counts of misconduct

with respect to Attorney Shepherd's representation of Jean and

James: (1) by accepting a $2,000 advance fee for legal work

without a written fee agreement, when it was reasonably

foreseeable that the total cost of the representation would

exceed $1,000, and did exceed $1,000, Attorney Shepherd violated

SCR 20:1.5(b)(1) and (2);1 (2) by failing to place advanced fees

1
SCR 20:1.5(b) provides:

(1) The scope of the representation and the basis
or rate of the fee and expenses for which the client
will be responsible shall he communicated to the
client in writing, before or within a reasonable time
after commencing the representation, except when the
lawyer will charge a regularly represented client on
the same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including attorney's
fees, will be $1000 or less, the communication may he
oral or in writing. Any changes in the basis or rate
of the fee or expenses shall also be communicated in
writing to the client.

(2) If the total cost of representation to the
client, including attorney's fees, is more than $1000,
the purpose and effect of any retainer or advance fee
(continued)
4
 No. 2016AP737-D

into his trust account, without evidence of an intention to

follow the SCR 20:1.15(b)(4m) alternative, Attorney Shepherd

violated SCR 20:1.15(b)(4);2 (3) by failing to respond to the

clients' requests for information regarding fees and a final

accounting, Attorney Shepherd violated SCR 20:1.5(b)(3);3 and (4)

by failing to refund any unearned fees to these clients,

Attorney Shepherd violated SCR 20:1.16(d).4

that is paid to the lawyer shall be communicated in
writing.
2
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S.
Ct. Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016).
Because the conduct underlying this case arose prior to July 1,
2016, unless otherwise indicated, all references to the supreme
court rules will be to those in effect prior to July 1, 2016.

SCR 20:1.15(b)(4) provided:

Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
3
SCR 20:1.5(b)(3) provides: "A lawyer shall promptly
respond to a client's request for information concerning fees
and expenses."
4
SCR 20:1.16(d) provides:

Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
(continued)
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 No. 2016AP737-D

¶10 Counts five through eight of the complaint involved

Attorney Shepherd's representation of I.P., in connection with

documenting the sale of a farm.

¶11 In early 2014, I.P. hired Attorney Shepherd to draft

paperwork for the sale and transfer of a farm. On January 23,

2014, I.P. met with Attorney Shepherd to discuss the necessary

legal work and gave him several original documents. Attorney

Shepherd indicated that the work would be completed within a

month. At that meeting, I.P. paid Attorney Shepherd $1,000 in

advanced fees, but did not sign a written fee agreement.

Attorney Shepherd did not deposit I.P.'s fees into his trust

account and did no work on I.P.'s behalf.

¶12 From March through May of 2014, I.P. and her daughter

repeatedly attempted to contact Attorney Shepherd, without

success. Eventually I.P. hired another attorney to document the

farm's sale. Attorney Shepherd has not refunded any unearned

fees to I.P., despite her request that he do so.5

¶13 The OLR complaint alleged four counts of misconduct
with respect to Attorney Shepherd's representation of I.P.: (1)

by failing to take steps to complete the work that he had been

hired to perform on I.P.'s behalf, Attorney Shepherd violated

relating to the client to the extent permitted by
other law.
5
In December of 2014, the Wisconsin Lawyers' Fund for
Client Protection reimbursed I.P.'s $1,000 advanced fee.

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 No. 2016AP737-D

SCR 20:1.3;6 (2) by failing to respond to I.P.'s status inquiries

or otherwise keep I.P. informed regarding the status of her

matter, Attorney Shepherd violated SCR 20:1.4(a)(3) and (4);7 (3)

by failing to place advanced fees into his trust account, and

without evidence of an intention to follow the SCR

20:1.15(b)(4m) alternative, Attorney Shepherd violated SCR

20:1.15(b)(4); and (4) by failing to refund unearned fees to

I.P., Attorney Shepherd violated SCR 20:1.16(d).

¶14 Counts nine and ten of the OLR complaint pertain to

Attorney Shepherd's unauthorized representation of M.T. and his

failure to cooperate with the OLR's inquiries about this

incident. Attorney Shepherd's Wisconsin law license has been

administratively suspended since October 31, 2014. In March

2015, Attorney Shepherd agreed to prepare a will and related

documents for M.T. M.T. paid Attorney Shepherd $700 and

Attorney Shepherd completed the work for M.T.

¶15 On November 16, 2015, the OLR contacted Attorney

Shepherd requesting specific information regarding his work for
M.T., which was conducted while his law license was suspended.

Attorney Shepherd did not respond. On December 17, 2015, the

OLR personally served Attorney Shepherd with a letter directing

6
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
7
SCRs 20:1.4(a)(3) and (4) provides a lawyer shall: "(3)
keep the client reasonably informed about the status of the
matter, (4) promptly comply with reasonable requests by the
client for information."

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 No. 2016AP737-D

him to respond to the OLR's request regarding M.T. Again,

Attorney Shepherd did not respond. The OLR filed a notice of

motion and motion requesting an order to show cause as to why

Attorney Shepherd's license should not be suspended for failing

to cooperate in an OLR investigation. On March 7, 2016, this

court granted the OLR's motion and temporarily suspended

Attorney Shepherd's law license. His license remains

temporarily suspended.

¶16 The OLR complaint alleged two counts of misconduct

regarding this incident: (1) by practicing law while his

license was suspended, Attorney Shepherd violated SCR 22.26(2),8

enforced via SCR 20:8.4(f);9 and (2) by failing to respond to the

8
SCR 22.26(2) provides:

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.
9
SCR 20:8.4(f) provides: "It is professional misconduct
for a lawyer to violate a state supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers."

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 No. 2016AP737-D

OLR's request for information, Attorney Shepherd violated

SCR 22.03(6), enforceable via SCR 20:8.4(h).10

¶17 Attorney Shepherd filed an answer in which he admitted

to "the general factual basis for Counts 1-10" and to the

"general legal conclusions in Counts 1-10." Referee Murphy was

appointed.

¶18 At an ensuing scheduling conference, Attorney Shepherd

indicated he did not want to contest the allegations contained

in the complaint nor did he contest the OLR's motion for

judgment on the pleadings. He did, however, contest the

proposed discipline, maintaining private discipline was

sufficient in view of his struggles with depression and other

personal challenges. The OLR was directed to forward a

stipulation to Attorney Shepherd by September 9, 2016.

¶19 By letter dated October 11, 2016, the OLR informed the

referee that Attorney Shepherd had not returned the stipulation

or otherwise responded to the OLR. The OLR sought a judgment on

the pleadings.
¶20 The OLR and Attorney Shepherd then executed and filed

a Waiver of Right to a Hearing and each party submitted briefs

on the proper level of discipline.

10
SCR 20:8.4(h) provides: "It is professional misconduct
for a lawyer to fail to cooperate in the investigation of a
grievance filed with the office of lawyer regulation as required
by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."

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 No. 2016AP737-D

¶21 The referee filed his findings of fact, conclusions of

law, and recommendation for discipline on February 24, 2017.

The referee determined that the OLR had met its burden of proof

with respect to the ten counts of misconduct alleged in the

complaint. Essentially, the referee found that Attorney

Shepherd admitted to each and every allegation contained in the

complaint, based on his admissions contained in the Answer and

in the Waiver of Right to a Hearing, together with Attorney

Shepherd's statements made during the telephone scheduling

conferences.

¶22 The referee then considered the appropriate

discipline, considering the seriousness, nature, and extent of

misconduct, the level of discipline needed to protect the public

and the legal system from repetition of the misconduct, the need

to impress on the attorney the seriousness of the misconduct,

and the need to deter others from committing similar acts. In

re Disciplinary Proceedings Against Scanlan, 2006 WI 38, ¶72,

290 Wis. 2d 30, 712 N.W.2d 877; citing In re Disciplinary
Proceedings Against Charlton, 174 Wis. 2d 844, 875-76, 498

N.W.2d 380 (1993). The referee concluded that in this case,

public discipline is appropriate. The referee recommends that

we publicly reprimand Attorney Shepherd, that we order him to

pay restitution, and that we impose the full costs of the

proceeding on Attorney Shepherd.

¶23 Attorney Shepherd sought to file an appeal from the

referee's report and recommendation, but, by order dated May 15,

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 No. 2016AP737-D

2017 the court ruled that his appeal was untimely.11 Thus, the

court's review proceeds under SCR 22.17(2).12

¶24 In conducting our review, we uphold a referee's

findings of fact unless they are shown to be clearly erroneous,

but we review the referee's conclusions of law on a de novo

basis. See In re Disciplinary Proceedings Against Carroll, 2001

WI 130, ¶29, 248 Wis. 2d 662, 636 N.W.2d 718; In re Disciplinary

Proceedings Against Sosnay, 209 Wis. 2d 241, 243, 562 N.W.2d 137

(1997). Having established the proper factual and legal

setting, we determine the appropriate level of discipline to be

imposed under the circumstances, independent of the referee's

11
In his notice of appeal, Attorney Shepherd indicated his
intent to resign his law license. As part of our order
dismissing his appeal we advised Attorney Shepherd that we would
hold this disciplinary matter in abeyance for 20 days to afford
him the opportunity to file a petition to voluntarily surrender
his Wisconsin license with the State Bar of Wisconsin, such that
his request for a voluntary resignation from the State Bar would
be considered along with the pending disciplinary proceeding.
On May 30, 2017, Attorney Shepherd filed a petition to
voluntarily surrender his Wisconsin license with the State Bar
of Wisconsin. On June 1, 2017, the OLR asked that we resolve
this disciplinary proceeding before acting on the petition.
12
SCR 22.17(2) provides:

If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
modify the referee's findings and conclusions or
remand the matter to the referee for additional
findings; and determine and impose appropriate
discipline. The court, on its own motion, may order
the parties to file briefs in the matter.

11
 No. 2016AP737-D

recommendation. See In re Disciplinary Proceedings Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶25 There is no showing that any of the referee's findings

of fact are clearly erroneous. Accordingly, we adopt them. We

also agree with the referee's conclusions of law that Attorney

Shepherd violated the supreme court rules set forth above.

¶26 The only contested issue here is the appropriate

discipline. On balance, we accept the referee's recommendation

that a public reprimand is appropriate.

¶27 Attorney Shepherd argued for a private sanction. He

suffers from depression and has informed the referee that he

intends to leave the practice of law permanently, such that a

public reprimand would serve no purpose and would exacerbate his

feelings of shame and sense of failure.

¶28 The referee properly declined to accept Attorney

Shepherd's promise to resign his law license in exchange for a

private sanction. First, as the referee correctly observed,

sanctions are not only designed to deter an individual offending
attorney from committing future violations. Sanctions are also

intended to give notice to other attorneys and to the public

that the improper practice of law carries serious consequences.

Therefore, Attorney Shepherd's stated plan to leave the practice

of law does not mean a lesser sanction should be imposed.

Second, a lawyer is typically not permitted to voluntarily

resign his or her law license while a grievance is pending. See

In re Disciplinary Proceedings Against Snyder, 127 Wis. 2d 446,

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 No. 2016AP737-D

380 N.W.2d 367 (1986) (voluntary resignation is an inappropriate

disposition of a disciplinary proceeding); SCR 10.03(7)(a).13

¶29 Attorney Shepherd also asserts that his mental health

issues, namely serious depression, warrant a private sanction

because of the toll a public sanction will take on his mental

health. In his untimely appeal, he asserted that the referee

failed to adequately consider the effects of depression and

underestimated Attorney Shepherd's attempts to resolve the

disciplinary issues.

¶30 Although no timely appeal was filed, we note that the

record does not support Attorney Shepherd's claims in this

regard. The referee acknowledged that Attorney Shepherd

believed his misconduct stemmed from serious depression. The

referee acknowledged that depression "certainly can make the

practice of law difficult." However, the referee was not

persuaded that, under these facts, depression was a sufficient

explanation for the misconduct to warrant a private sanction.

13
SCR 10.03(7)(a) provides:

Voluntary resignation of membership. If a member
of the state bar files with the executive director a
written notice of the member's surrender of his or her
license to practice law and the acceptance by the
supreme court of his or her resignation in the state
bar, the person shall then cease to be a member of the
state bar and his or her name shall be removed from
the membership register. Before accepting a
resignation, the supreme court shall request from the
office of lawyer regulation information concerning
whether the attorney is the subject of any pending
grievances, investigations, or proceedings.

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 No. 2016AP737-D

Moreover, the OLR had indicated that it had already considered

Attorney Shepherd's depression as a mitigating factor when it

recommended a public reprimand rather than a more severe

sanction. The referee also expressed justifiable concern that

Attorney Shepherd had not taken steps to make his clients

financially whole without the need for a restitution order.

Indeed, he appears to have attempted to use restitution as a

bargaining chip to obtain a lesser sanction.

¶31 We recognize that depression apparently played a role

in Attorney Shepherd's misconduct and have sympathy for the

intense pain mental illness can inflict on those who suffer from

it. Based on this record, however, we accept the referee's

determination that public discipline is appropriate. Attorney

Shepherd committed misconduct in three separate client matters.

Work was left undone, unearned fees were not returned, and

Attorney Shepherd undertook additional legal work knowing his

license was suspended. No two fact situations are identical,

but we agree that in this case, a public reprimand is warranted.
See In re Disciplinary Proceedings Against Smead, 2013 WI 19,

345 Wis. 2d 625, 827 N.W.2d 81 (imposing public reprimand for

seven counts of misconduct including accepting fees without

written fee agreements, failing to deposit fees into trust

account, failing to respond to client inquiries, failing to

return unearned fees, and failing to notify clients of his

suspension); see also Public Reprimand of Rod J. Koenen, No.

2011-15 (electronic copy available at
https://compendium.wicourts.gov/app/raw/002428.html), (imposing
14
 No. 2016AP737-D

public reprimand for four counts of misconduct including failing

to have written fee agreement, providing inaccurate information,

placing advanced fee into business account, and failing to

respond to the OLR investigation); Public Reprimand of Koua

Vang, No. 2004-4 (electronic copy available at

https://compendium.wicourts.gov/app/raw/001662.html), (imposing

public reprimand on lawyer, with depression, for nine counts of

misconduct committed in three client matters including failure

to keep clients informed, failure to diligently pursue client

interests, and failing to comply with a court order directing

return of a file).

¶32 Finally, we agree that Attorney Shepherd should be

required to pay restitution in two client matters as set forth

herein and shall pay the full costs of the proceeding.

¶33 IT IS ORDERED that Philip A. Shepherd is publicly

reprimanded for professional misconduct.

¶34 IT IS FURTHER ORDERED that Philip A. Shepherd shall

pay $622.50 in restitution to Jean B. and $1,000 in restitution
to Wisconsin Lawyers' Fund for Client Protection regarding

I.P.'s claim.

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

of this order, Philip A. Shepherd shall pay to the Office of

Lawyer Regulation the costs of this proceeding, which are

$1,887.96 as of March 8, 2017.

¶36 IT IS FURTHER ORDERED that payment of restitution to

Jean B. and to the Wisconsin Lawyers' Fund for Client Protection

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 No. 2016AP737-D

is to be completed prior to paying costs to the Office of Lawyer

Regulation.

¶37 IT IS FURTHER ORDERED that the March 7, 2016 temporary

suspension of Philip A. Shepherd's license to practice law in

Wisconsin, due to his willful failure to cooperate with the

Office of Lawyer Regulation's investigation in this matter, is

lifted.

¶38 IT IS FURTHER ORDERED that the administrative

suspension of Philip A. Shepherd's license to practice law in

Wisconsin, due to his failure to pay mandatory bar dues, failure

to file a trust account certification, and failure to comply

with continuing legal education requirements, will remain in

effect until each reason for the administrative suspension has

been rectified, pursuant to SCR 22.28(1).

¶39 IT IS FURTHER ORDERED that Philip A. Shepherd's

Petition to Voluntarily Surrender his Wisconsin Law License is

granted, and his license is surrendered effective the date of

this order.
¶40 IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.

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 No. 2016AP737-D.ssa

¶41 SHIRLEY S. ABRAHAMSON, J. (concurring in part and

dissenting in part). I disagree with the court's accepting the

voluntary resignation from the practice of law. See my dissent

in the order dated May 15, 2017, in OLR v. Horsch, No.

2015AP1928-D, addressing the issue of a voluntary resignation

during an ongoing OLR proceeding.

¶42 Our case law is clear: The court does not grant an

attorney's petition to voluntarily resign from the practice of

law when a disciplinary action is pending to avoid the

imposition of discipline for unprofessional conduct. See, e.g.,

In re Disciplinary Proceedings Against Ewald-Herrick, 2014 WI

40, ¶19, 354 Wis. 2d 672, 847 N.W.2d 823; In re Disciplinary

Proceedings Against Schalow, 131 Wis. 2d 1, 388 N.W.2d 176

(1986); In re Disciplinary Proceedings Against Snyder, 127

Wis. 2d 446, 380 N.W.2d 367 (1986); In re Disciplinary

Proceedings Against Wortley, 126 Wis. 2d 58, 374 N.W.2d 898

(1985).

¶43 The difficulty with a voluntary resignation is that a
lawyer who resigns can "unresign," and the Supreme Court Rules

do not set forth a procedure the attorney, the OLR, and the

court should follow at that time. It may be difficult at that

time to prove misconduct and impose appropriate conditions for

readmission.

¶44 If the court wants to accomplish the goals of

disciplining Attorney Shepherd for misconduct and allowing

Attorney Shepherd to terminate his practice of law, I conclude
that the court should follow Supreme Court Rule 22.19. Under

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 No. 2016AP737-D.ssa

this rule, Attorney Shepherd would be permitted to file a

petition stating that that he cannot successfully defend against

the charges and that he petitions for voluntary revocation of

his license.

¶45 In contrast to resignation, Supreme Court Rule 22.19

provides that an attorney who is the subject of an OLR

proceeding may petition for voluntary revocation of his or her

license as follows.

SCR 22.19 Petition for consensual license revocation.

(1) An attorney who is the subject of an investigation
for possible misconduct or the respondent in a
proceeding may file with the supreme court a petition
for the revocation by consent or [sic] his or her
license to practice law.

(2) The petition shall state that the petitioner
cannot successfully defend against the allegations of
misconduct.

(3) If a complaint has not been filed, the petition
shall be filed in the supreme court and shall include
the director's summary of the misconduct allegations
being investigated. Within 20 days after the date of
filing of the petition, the director shall file in the
supreme court a recommendation on the petition. Upon
a showing of good cause, the supreme court may extend
the time for filing a recommendation.

(4) If a complaint has been filed, the petition shall
be filed in the supreme court and served on the
director and on the referee to whom the proceeding has
been assigned. Within 20 days after the filing of the
petition, the director shall file in the supreme court
a response in support of or in opposition to the
petition and serve a copy on the referee. Upon a
showing of good cause, the supreme court may extend
the time for filing a response. The referee shall
file a report and recommendation on the petition in
the supreme court within 30 days after receipt of the
director's response.

2
 No. 2016AP737-D.ssa

(5) The supreme court shall grant the petition and
revoke the petitioner's license to practice law or
deny the petition and remand the matter to the
director or to the referee for further proceedings.
¶46 In contrast to a lawyer who voluntarily resigns, a

lawyer whose license has been revoked cannot seek readmission

for five years, SCR 22.29(2), and the revocation documents will

provide a full record for the court's consideration at the time

of readmission. The Rules provide a procedure for investigation

upon a request for readmission. If Attorney Shepherd is sincere

about not wanting to practice law again, SCR 22.19 seems to fit

the instant case.

¶47 For the reasons set forth, I would not accept Attorney

Shepherd's voluntary resignation.

¶48 I suggest that the OLR Procedure Review Committee

(Professor Marsha Mansfield, University of Wisconsin Law School,

Reporter), appointed by the court in June 2016, examine the

issue of voluntary resignation (and readmission proceedings

thereafter) and voluntary revocation by an attorney subject to a

discipline proceeding who wishes to terminate his or her
practice of law. The instant case is illustrative of a problem.

¶49 For the reasons set forth, I write separately.

¶50 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

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1