Office of Lawyer Regulation v. Daniel W. Johns, Jr.
847 N.W.2d 179
Wis.2014Background
- In 2004 Daniel W. Johns, Jr. pled guilty to homicide by use of a vehicle with a prohibited alcohol concentration after a 2002 one-vehicle crash that killed his brother; BAC was .257%. He served jail time and probation and resumed practicing law.
- The Office of Lawyer Regulation (OLR) filed a two-count disciplinary complaint in 2011: (1) violation of SCR 20:8.4(b) (criminal act reflecting adversely on honesty, trustworthiness, or fitness) based on the 2004 conviction, and (2) violation of SCR 21.15(5) (duty to notify OLR and the clerk in writing of a conviction).
- At the plea hearing an off-the-record phone call between defense counsel and an OLR deputy occurred; OLR had actual knowledge of the conviction that day, but no written notice to the clerk was ever sent.
- A referee found no violation of SCR 20:8.4(b) but found a violation of SCR 21.15(5) and recommended a private (or public) reprimand; OLR appealed seeking findings on both counts and a 60‑day suspension.
- The Supreme Court (per curiam) accepted the referee’s factual findings, concluded no violation of SCR 20:8.4(b), and dismissed the SCR 21.15(5) charge as a technical violation not warranting consequences; discipline dismissed.
- Chief Justice Abrahamson dissented, agreeing Johns violated SCR 21.15(5) and would have found the felony violated SCR 20:8.4(b) but would impose no discipline.
Issues
| Issue | Plaintiff's Argument (OLR) | Defendant's Argument (Johns) | Held |
|---|---|---|---|
| Whether Johns’ vehicular homicide conviction violated SCR 20:8.4(b) | The felony (vehicular homicide by intoxication) reflects adversely on fitness and warrants suspension; out‑of‑state precedents impose suspension/disbarment for similar crimes | The conviction was an isolated, tragic, non‑recurring act; it does not show dishonesty, untrustworthiness, or impaired fitness to practice | No violation: court holds the single tragic conviction did not reflect adversely on honesty, trustworthiness, or fitness as a lawyer |
| Whether failure to provide written notice violated SCR 21.15(5) | Johns failed to provide the required written notice to both OLR and the supreme court clerk; rule is unambiguous and requires writing | Actual notice occurred via counsel’s phone call to an OLR deputy at the plea hearing; failure to provide writing was technical and did not prejudice OLR | Violation acknowledged by referee but court dismissed the count as a too‑technical breach where OLR had actual timely knowledge; no discipline imposed |
| Admissibility/weight of 21 character letters from juveniles at Lincoln Hills | OLR argued letters were hearsay and should be excluded | Johns argued letters were admissible or harmless even if erroneously admitted given other character evidence | Court treated OLR’s failure to press the issue as concession; letters accepted and considered in assessing character |
| Appropriate discipline (if violations proved) | OLR sought 60‑day suspension based on seriousness and precedent | Johns urged minimal/no discipline given isolated nature, rehabilitation, and community service | No discipline: because court found no substantive rule violation and dismissed the technical notice claim, no sanction imposed |
Key Cases Cited
- In re Disciplinary Proceedings Against Stearn, 272 Wis. 2d 141 (2004) (consensual license revocation after homicide by intoxicated use of a vehicle)
- In re Disciplinary Proceedings Against Inglimo, 305 Wis. 2d 71 (2007) (criminal conduct with clients reflected adversely on fitness)
- In re Disciplinary Proceedings Against Brandt, 338 Wis. 2d 524 (2012) (significant suspension following felony DWI with aggravating history)
- In re Disciplinary Proceedings Against Penn, 201 Wis. 2d 405 (1996) (public trust damaged when prosecutor used illegal drugs with subjects of prosecution)
- In re Disciplinary Proceedings Against Curran, 801 P.2d 962 (Wash. 1990) (vehicular homicide: suspension appropriate)
- Hoare v. [related disciplinary proceedings], 155 F.3d 937 (8th Cir. 1998) (affirming reciprocal discipline after state disbarment for aggravated reckless homicide)