2017 WI 82
SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2088-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
David V. Moss,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST MOSS
OPINION FILED: August 2, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2017 WI 82
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2088-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against David V. Moss, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
AUG 2, 2017
v.
Diane M. Fremgen
Clerk of Supreme Court
David V. Moss,
Respondent.
ATTORNEY reinstatement proceeding. Reinstatement granted
with conditions.
¶1 PER CURIAM. We review a report filed by Referee
James C. Boll recommending that the court reinstate the license
of David V. Moss to practice law in Wisconsin. Upon careful
review of the matter, we agree that Attorney Moss's license
should be reinstated, with the conditions described herein. We
further agree with the referee that Attorney Moss should be
required to pay the full costs of the reinstatement proceeding,
which are $3,321.79 as of May 22, 2017.
No. 2013AP2088-D
¶2 Attorney Moss was admitted to practice law in
Wisconsin in 2009 and practiced in Galesville. Attorney Moss
currently lives in the state of Washington. In 2014, Attorney
Moss's license to practice law in Wisconsin was suspended for a
period of two years for 35 counts of misconduct, which involved
eight separate client matters. In re Disciplinary Proceedings
Against Moss, 2014 WI 95, 357 Wis. 2d 324, 850 N.W.2d 934.
Attorney Moss's misconduct included repeatedly taking fees from
clients and failing to perform the work for which he was hired;
failing to communicate with clients regarding the status of
their matters; and failing to return fees and client files upon
request. Attorney Moss was later reciprocally disciplined by
the United States Patent and Trademark Office.
¶3 In July 2016, Attorney Moss filed a petition seeking
the reinstatement of his Wisconsin law license. In January
2017, the Office of Lawyer Regulation (OLR) filed a response
stating it did not oppose the reinstatement petition. A public
hearing was held on April 3, 2017. Attorney Moss called three
witnesses at the hearing, two attorneys in Washington state and
a longtime friend. All three testified they would refer clients
to Attorney Moss and believe he would be a good lawyer. One
former client of Attorney Moss testified at the hearing that he
did not believe Attorney Moss should be reinstated to practice
law. However, the former client said he had not spoken with or
observed Attorney Moss for over three years.
¶4 On May 2, 2017, the referee issued his report and
recommendation recommending that Attorney Moss's Wisconsin law
2
No. 2013AP2088-D
license be reinstated. The referee commented that during the
reinstatement hearing, Attorney Moss testified with sincerity
regarding his previous disciplinary issues, took responsibility
for his actions, and apologized on the record to his clients.
The referee noted that Attorney Moss testified he had been
diagnosed with a bi-polar disorder in March of 2014 and that he
controls this condition under the supervision of a doctor with
prescribed medication and regular sessions with a counselor.
The referee said that while he understands the frustration of
the former client who opposed Attorney Moss's reinstatement, all
available evidence in the record indicates that Attorney Moss
has changed from the individual the former client encountered
and the record demonstrates that Attorney Moss, with the help of
medication and under a doctor's supervision, now has the moral
character to practice law.
¶5 The referee concluded that Attorney Moss satisfied the
burden of proof and requirements for reinstatement set forth in
Supreme Court Rule (SCR) 22.31. The referee recommends that
Attorney Moss's Wisconsin law license be reinstated with the
following conditions:
1) Attorney Moss continue in counseling with a
therapist who treats bi-polar conditions.
2) Attorney Moss continue in treatment with a
physician who prescribes medication for bi-polar
conditions.
3) Attorney Moss cooperate by taking the medication
prescribed for his bi-polar condition.
4) Attorney Moss not consume any illegal drugs.
3
No. 2013AP2088-D
5) For a period of two (2) years following
reinstatement, Attorney Moss provide the OLR with
quarterly written reports from his therapist and
his prescribing physician that he is cooperating
with therapy and with taking the prescribed
medication for his bi-polar condition.
¶6 The referee also recommends that Attorney Moss pay the
full costs of the reinstatement proceeding. No appeal has been
filed from the referee's report and recommendation.
¶7 Supreme Court Rule 22.31(1) provides the standards to
be met for reinstatement. The petitioner must show by clear,
satisfactory, and convincing evidence that he or she has the
moral character to practice law, that his or her resumption of
the practice of law will not be detrimental to the
administration of justice or subversive to the public interest,
and that he or she has complied with SCR 22.26 and the terms of
the order of suspension. In addition, SCR 22.31(1)(c)
incorporates the statements that a petition for reinstatement
must contain pursuant to SCR 22.29(4)(a)-(4m). Thus, the
petitioning attorney must demonstrate that the required
representations in the reinstatement petition are substantiated.
¶8 When we review a referee's report and recommendation,
we will adopt the referee's findings of fact unless they are
clearly erroneous. Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings Against Eisenberg, 2004 WI
14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We concluded that the
referee's findings support a determination that Attorney Moss
has met his burden to establish by clear, satisfactory, and
4
No. 2013AP2088-D
convincing evidence that he has met all of the standards
required for reinstatement.
¶9 The referee found that during the period of his
suspension, Attorney Moss has not practiced law in Wisconsin or
any other jurisdiction. The referee noted that Attorney Moss's
suspension required him to make restitution and to pay the costs
of the disciplinary proceeding and he has satisfied those
conditions. The referee found that Attorney Moss has maintained
competence and learning in the law by attending identified
educational activities. The referee specifically found that
Attorney Moss's conduct since the suspension has been exemplary
and above reproach. The referee noted that during his
suspension, Attorney Moss has pursued a certification as a
certified professional horticulturist and has also spent time
assisting a friend growing vegetables for a local food bank.
The referee found that Attorney Moss has a proper understanding
of and attitude toward the standards that are imposed upon
members of the bar and will act in conformity with those
standards.
¶10 The referee noted that Attorney Moss has represented
that if his license to practice law is reinstated, he would
potentially seek employment in Seattle, Washington to practice
immigration law. One of the attorneys who testified on Attorney
Moss's behalf at the reinstatement hearing said he would offer
Attorney Moss such employment. In addition, the referee noted
that Attorney Moss testified he may return to Wisconsin to
5
No. 2013AP2088-D
practice law in Green Bay in the areas of water law, permitting,
land use, immigration, and criminal law.
¶11 This court agrees with the referee that Attorney Moss
has met his burden of proof with respect to all elements needed
to justify his reinstatement. We further agree that it is
appropriate to impose the conditions on Attorney Moss's practice
of law recommended by the referee. Finally, we agree with the
referee's recommendation that Attorney Moss should pay the full
costs of the proceeding.
¶12 IT IS ORDERED that the license of David V. Moss to
practice law in Wisconsin is reinstated effective the date of
this order.
¶13 IT IS FURTHER ORDERED that, as a condition of the
reinstatement of his license to practice law in Wisconsin, David
V. Moss shall, until further order of the court, comply with the
following conditions:
1) Attorney Moss continue in counseling with a
therapist who treats bi-polar conditions.
2) Attorney Moss continue in treatment with a
physician who prescribes medication for bi-polar
conditions.
3) Attorney Moss cooperate by taking the medication
prescribed for his bi-polar condition.
4) Attorney Moss not consume any illegal drugs.
5) For a period of two (2) years following
reinstatement, Attorney Moss provide the Office
of Lawyer Regulation with quarterly written
reports from his therapist and his prescribing
physician that he is cooperating with therapy and
with taking the prescribed medication for his bi-
polar condition.
6
No. 2013AP2088-D
¶14 IT IS FURTHER ORDERED that within 60 days of the date
of this order, David V. Moss shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $3,321.79 as
of May 22, 2017.
¶15 IT IS FURTHER ORDERED that compliance with all of the
terms of this order remains a condition of David V. Moss's
license to practice law in Wisconsin.
7
No. 2013AP2088-D
1