author: SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Robert John Prihoda, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 98-2263-CR.

      Oral argument October 5, 2000.

    Decided November 14, 2000.

    2000 WI 123
    (Also reported in 618 N.W.2d 857.)

      For the defendant-appellant-petitioner there were briefs by Timothy T. Kay, Ronald J. Sonderhouse and Kay & Kay Law Firm, Brookfield, and oral argument by Timothy T. Kay.

    For the plaintiff-respondent the cause was argued by William C. Wolford, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of an unpublished decision of the court of appeals, affirming an order of the Circuit Court for Milwaukee County, Elsa C. Lamelas, Circuit Court Judge. The circuit court's order denied the motion of the defendant, Robert John Prihoda, seeking to vacate the 1997 change that the office of the Milwaukee County clerk of circuit court made in the sentence portion of his 1976 written judgment of conviction. The office of the Milwaukee County clerk of circuit court had modified the sentence portion of the defendant's 1976 written judgment of conviction to conform the written judgment to the oral pronouncement of sentence by the circuit court evidenced in the transcript of the 1976 sentence proceeding.

¶ 2. Both the circuit court and the court of appeals concluded that the clerk's office had the authority to correct the clerical error in the sentence portion of the written judgment of conviction without first obtaining the approval of the circuit court.

¶ 3. Three questions of law are presented to this court: (1) whether the office of the clerk of circuit court may correct a clerical error in the sentence portion of a written judgment of conviction without prior court approval; (2) whether an offender should be given notice that a clerical correction of the sentence portion of the written judgment of conviction is being considered and should be present at a hearing to consider whether the written judgment is to be modified; and (3) whether the doctrine of laches or Wis. Stat. § 893.40 (1997-98) proscribes a correction of a clerical error in the written judgment of conviction more than twenty years after the judgment is entered.

¶ 4. We affirm the decision of the court of appeals, although our reasoning differs from that of the court of appeals and the circuit court.

¶ 5. As to the first question of law, unlike the circuit court and court of appeals, we conclude that the office of the clerk of circuit court does not have the authority to correct a clerical error in the sentence portion of a written judgment of conviction. We conclude that the circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a change in the sentence portion of a written judgment of conviction because of an alleged clerical error. We further conclude that the circuit court may either correct the clerical error in the sentence portion of a written judgment of conviction or may direct the clerk's office to make such a correction.

¶ 6. As to the second question of law, we conclude that the circuit court has discretion to determine whether an offender is entitled to notice and a hearing before the correction of a clerical error in the sentence portion of a written judgment of conviction is made.

¶ 7. As to the third question of law, we conclude that neither the doctrine of laches nor Wis. Stat. § 893.40 bars a correction of a clerical error in the sentence portion of a written judgment of conviction in the present case.

¶ 8. In response to the defendant's postconviction motion, the circuit court determined that the sentence portion of the written judgment of conviction in this case contained a clerical error that should be corrected to reflect the oral pronouncement of the sentence. The defendant has had ample opportunity to raise his arguments against the correction in the court of appeals and in this court, and we have concluded that his arguments are without merit. Therefore, we conclude that it is unnecessary to remand the cause to the circuit court to determine the question of law whether the sentence portion of the written judgment of conviction should be corrected. No remand is needed.

HH

¶9. The relevant facts are not in dispute. On February 11,1976, the defendant was sentenced on one count of first-degree murder as party to a crime and four counts of armed robbery while conceahng identity as party to a crime. During the 1976 sentence proceeding at which the defendant was present, the circuit court stated on the record that the defendant's sentence in count one was a life sentence and the sentence in count five was thirty years, to run consecutive to the sentence in count two. The sentence in count two was thirty years, to run consecutive to the life sentence imposed in count one.

¶ 10. On the same date as the sentence proceeding, a written judgment of conviction was signed by the chief deputy clerk in the office of the Milwaukee County clerk of circuit court. The written judgment of conviction adjudges the defendant guilty of one count of first-degree murder as a party to a crime and four counts of armed robbery while concealing identity as party to a crime. It further states that the defendant is committed to the Wisconsin State Prisons for an indeterminate term of life imprisonment for count one (first-degree murder) and for four additional terms for the counts of armed robbery while concealing identity. At issue is the sentence for count five, the fourth charge of armed robbery, which provides "an indeterminate term of not more than 30 years, consecutive to count one, plus 5 years for concealing identity, to run consecutive to the first portion of this count (30) years and consecutive to count 2."

¶ 11. Simply stated, the discrepancy between the oral pronouncement of the sentence and the written judgment of conviction in count five is whether the sentence in count five runs consecutive to the sentence in count one or consecutive to the sentence in count two. Whether the thirty-year sentence in count five is consecutive to the sentence in count one or consecutive to the sentence in count two affects the total length of the defendant's sentence. If the thirty-year sentence in count five is consecutive to the sentence in count two, as the circuit court stated on the record, then the defendant's total sentence is life plus seventy years. If, as stated in the written judgment of conviction, the thirty-year sentence in count five is consecutive to the sentence in count one, then the defendant's total sentence is life plus forty years.

¶ 12. The discrepancy between the oral pronouncement of sentence and the written judgment of conviction was brought to the attention of the office of the Milwaukee County clerk of circuit court on November 13, 1997, when two employees of the Wisconsin Department of Corrections sent a memorandum to the felony clerk asking for clarification of the discrepancy between the sentence portion of the written judgment of conviction and the circuit court's oral pronouncement of sentence. Apparently this request for clarification resulted from the defendant's request to receive a reduced classification in the prison system from medium security to minimum security.

¶ 13. On November 20,1997, the office of the Milwaukee County clerk of circuit court corrected the sentence portion of the written judgment of conviction to correspond to the unambiguous statement in the sentencing transcript that the sentence in count five ran consecutive to the sentence in count two. The clerk's office, acting independently of the circuit court and without giving the defendant notice, issued a corrected written judgment of conviction. The Department of Corrections notified the defendant of the corrected written judgment of conviction on January 6,1998.

¶ 14. The defendant filed a postconviction motion with the Milwaukee Comity circuit court on July 10, 1998, seeking to vacate the "corrected" judgment of conviction. On July 15, 1998, the circuit court denied the defendant's motion for post-conviction relief. On January 4, 2000, the court of appeals affirmed the circuit court's order, agreeing that the clerk's office may correct a clerical error independently of the circuit court and without notice to the defendant or a hearing.

II

¶ 15. We must first resolve whether a clerk of circuit court may act independently of the circuit court in correcting a clerical error in an offender's written judgment of conviction. The parties appear to agree that the error in the present case is clerical. A difference between the sentence portion of the written judgment of conviction and the circuit court's unambiguous oral pronouncement of the sentence is a clerical error. Furthermore, the law is clear in Wisconsin that the record of the circuit court's unambiguous oral pronouncement of sentence trumps the written judgment of conviction. The circuit court and court of appeals concluded that a clerk of circuit court may correct a clerical error in a written judgment of conviction independent of the circuit court. We disagree with these courts.

¶ 16. The State's position is that "issues relating to the correction of clerical errors in judgments of conviction should first be considered by the court rather than by the clerk." We agree with the State for several reasons.

¶ 17. First, the law is clear that a court has the power to correct clerical errors at any time. If the circuit court concludes that a correction is warranted, the circuit court may direct the clerk to make the correction.

¶ 18. Second, no statute authorizes a clerk of circuit court, acting independently of the circuit court, to correct a clerical error in the sentence portion of a written judgment of conviction to reflect an unambiguous oral pronouncement of sentence made by a circuit court at a sentence proceeding. In particular, Wis. Stat. §§ 806.06, 972.13(4), and 971.26 do not authorize a clerk, independent of the circuit court, to correct a clerical error in the sentence portion of a written judgment of conviction.

¶ 19. Pursuant to Wis. Stat. § 806.06(2), governing civil proceedings, a clerk has the authority to sign a judgment, but only upon the written order of a judge. Although neither party argues that this civil provision applies to criminal judgments, rules of evidence and practice in civil actions are applicable to criminal proceedings unless the context of the section or rule manifestly requires a different construction. Even if Wis. Stat. § 806.06(2) were applicable in the present case, the statute authorizes clerks to sign judgments only upon the written order of a judge. Thus, Wis. Stat. § 806.06 does not authorize the clerk in the present case, independently of the circuit court, to correct a clerical error in the sentence portion of a written judgment of conviction.

¶ 20. Section 972.13(4) of the Wisconsin Statutes governs the authority to sign judgments in criminal proceedings and appears to control the present case, rather than Wis. Stat. § 806.06(2). Section 972.13(4) states that "[j judgments [of conviction] shall be in writing and signed by the judge or clerk." Although the statute allows a clerk to sign a judgment, § 972.13(4) is silent about how corrections to a written judgment of conviction are to be made. Thus, Wis. Stat. § 972.13(4) does not authorize clerks to correct written judgments of conviction or sign corrected judgments independent of the circuit court.

¶ 21. Section 971.26, applicable to criminal proceedings, provides that a judgment shall not be affected by reason of any defects or imperfections in matters of form that do not prejudice the defendant. In the present case, the parties disagree about whether the defect prejudiced the defendant. However, regardless of whether the defect prejudiced the defendant and whether Wis. Stat. § 971.26 protects the validity of the 1976 written judgment of conviction, the statute does not authorize a clerk's office, independent of the circuit court, to change a written judgment of conviction to reflect the circuit court's unambiguous oral pronouncement of sentence. In sum, we can find no statute that authorizes an office of a clerk of circuit court to correct a clerical error in the sentence portion of a written judgment of conviction, and the parties cite none.

¶ 22. Third, the case law indicates that a clerk of circuit court may not change a written judgment of conviction when the change can be characterized as a "judicial decision." The issue then becomes what is a judicial decision. In Mikrut v. State, 212 Wis. 2d 859, 868, 569 N.W.2d 765 (Ct. App. 1997), the court of appeals concluded that the clerk of circuit court made a judicial decision in changing the date of the offender's prior conviction from the date of the judgment of conviction to the date the offender pled guilty. The court of appeals held that because the change was a judicial decision and the change was not directed by any judge, it was void. The court of appeals did not set forth the criteria for what constitutes a judicial decision, that is, a decision for a court rather than for a clerk.

¶ 23. Examining the statutes and case law, we conclude that a judicial decision includes the correction of a clerical error in the sentence portion of a written judgment of conviction. Requests for correction of clerical errors in the sentence portion of a written judgment of conviction may involve questions of interpretation of the oral pronouncement of sentence or of the written judgment. Such requests may also involve disputes about whether the error is clerical or substantive.

¶ 24. Even this case arguably raises an issue of interpretation. Neither party disputes that the oral pronouncement of sentence unambiguously provides for a sentence of life plus seventy years. TJie defendant concedes that State v. Perry, 136 Wis. 2d 92, 115, 401 N.W.2d 748 (1987), holds that an unambiguous oral pronouncement controls when a conflict exists between a court's oral pronouncement of sentence and a written judgment. However, the parties disagree about whether the written judgment of conviction is ambiguous. The State contends that the original 1976 written judgment of conviction, although not as clear as the oral pronouncement of judgment or the corrected judgment, does in fact impose a total sentence of life plus seventy years. A correction was not even necessary, according to the State.

¶ 25. The defendant argues that the written judgment unambiguously provides a sentence of life plus forty years, and the clerk changed the sentence. The parties' disagreement about how to characterize the written judgment of conviction in this case highlights the importance of having a court, rather than a clerk of circuit court, consider any change in the sentence portion of a written judgment of conviction.

¶ 26. Accordingly, we adopt a bright-line rule to avoid disputes about a clerk's powers: The office of a clerk of circuit court may not correct a clerical error in the sentence portion of a written judgment of conviction independent of the circuit court.

¶ 27. For the reasons set forth, we conclude that the office of the clerk of circuit court does not have authority to correct a clerical error in the sentence portion of a written judgment of conviction independent of the circuit court. We conclude that the circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a correction in the sentence portion of a written judgment of conviction because of an alleged clerical error. We further conclude that the circuit court may either correct the clerical error in the sentence portion of a written judgment of conviction or direct the clerk’s office to make such a correction.

I — I HH H-Í

¶ 28. The defendant argues that he should have been given notice that a correction of the sentence portion of the written judgment of conviction was being considered and should have been present at a hearing to consider whether the written judgment should be modified.

¶ 29. The defendant relies on Wis. Stat. § 971.04(l)(g), which provides that a defendant is to be present at "pronouncement of judgment and. the imposition of sentence." In Wisconsin, an unambiguous oral pronouncement of sentence controls over a written judgment of conviction. Because the defendant was present at the 1976 sentence proceeding in which the circuit court unambiguously pronounced the sentence of life plus seventy years, the defendant was present when his sentence was pronounced and imposed. A correction of the sentence portion of a written judgment of conviction to reflect the circuit court's unambiguous oral pronouncement of sentence at which the defendant was present is not a pronouncement of judgment or the imposition of sentence under § 971.04(l)(g). The statute does not mandate a defendant's presence when a clerical error is corrected.

¶ 30. The defendant also relies on Siegel v. State, 201 Wis. 12, 229 N.W. 44 (1930). In Siegel, this court held that proceedings during which the circuit court restated the initial sentence in slightly different form but in substance providing the same sentence, were void and of no effect because the offender had a constitutional right to be present in court. Siegel can be distinguished from the present case. The Siegel court apparently did not consider the changes the trial court made to be corrections of a clerical error. To the extent that Siegel can be interpreted to mean that an offender has a federal or state constitutional right to be present when a circuit court corrects a clerical error in a written judgment of conviction, that interpretation is erroneous.

¶31. Because a clerical error by definition is minor and mechanical in nature, we conclude that it is within the discretion of the circuit court to determine whether to give an offender notice and a hearing at which the offender is present before a clerical error in a written judgment of conviction is corrected. The circuit court should exercise its discretion, considering the need for adversary proceedings to clarify the issue. The circuit court may consider such factors as the nature of the request, the state of the record, the ease by which the determination can be made that a clerical error occurred and should be corrected, issues of equity, and the risk and cost of transporting the offender for the purpose of attending the hearing. In any event, either the circuit court or the office of the clerk of court, pursuant to directive from the circuit court, shall give the offender notice of any correction of a clerical error in the sentence portion of a written judgment of conviction after the correction is made.

¶ 32. Our conclusion that the circuit court has discretion whether to give notice to the offender and to hold a hearing at which the offender may be present before correcting the written judgment of conviction is consistent with the approach taken in Rule 36 of the Federal Rules of Criminal Procedure. Adopting prior law, Rule 36 provides that "[cjlerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders." Numerous states have adopted the federal rule or a similar rule by court rule or statute.

¶ 33. In deciding the merits of the correction in this case, the circuit court need not have given notice to the defendant and need not have held a hearing at which he could have appeared. The oral pronouncement of the sentence was unambiguous; the written judgment of conviction was arguably ambiguous; the law is clear that the oral pronouncement trumps the sentence portion of the written judgment; the correction could readily be made. In this case, notice and a hearing did not appear to be necessary because adversary proceedings did not appear necessary to clarify the correction.

¶ 34. The defendant, however, presents legal arguments in this court about laches and the application of Wis. Stat. § 893.40, the statute of limitations for actions on a judgment. These arguments do raise issues that have benefited from the adversary proceedings in this court.

IV

¶ 35. The defendant argues that the circuit court erred in denying his postconviction motion to vacate the corrected written judgment and to reinstate the original written judgment. The defendant argues that it was erroneous for either the clerk of the circuit court or the circuit court to correct the clerical error in the sentence portion of his written judgment of conviction because more than twenty years have elapsed since the written judgment. Specifically, the defendant argues that either the doctrine of laches or Wis. Stat. § 893.40 bars a clerical correction to a judgment of conviction when the written judgment was entered more than twenty years ago.

¶ 36. We are not persuaded that either the doctrine of laches or Wis. Stat. § 893.40 bars the correction to the defendant's written judgment of conviction.

¶ 37. The defendant's laches argument fails because he has not satisfied all three elements of the doctrine: (1) unreasonable delay; (2) lack of knowledge on the part of the party asserting the defense that the other party would assert the right on which he bases his suit; and (3) prejudice to the party asserting the defense in the event the action is maintained. The defendant has not established the third element, prejudice.

¶ 38. The defendant's brief asserts that the defendant was prejudiced because he did not believe that he would be given an additional thirty years in prison. The record reflects that the defendant knew that the thirty-year sentence in count five was consecutive to the sentence in count two and that his sentence amounted to a life sentence plus seventy years.

¶ 39. For example, on February 3, 1977, the defendant, through counsel, filed a motion for sentence modification and other postconviction relief and a brief in support thereof. The joint brief filed by counsel for the defendant and his co-defendants in support of the motion stated that "the Court sentenced each defendant to a term of not more than thirty (30) years, consecutive to the sentence imposed on count two."

¶ 40. On December 5,1980, the defendant filed a pro se postconviction motion in which the defendant himself asserted that he was sentenced on February 11, 1976, "to a total term of Life and Seventy Years Consecutive."

¶ 41. Further, on March 26,1985, the defendant, through counsel, filed a § 974.06 motion in the circuit court and the brief in support thereof described his sentence for the armed robbery and concealing identity charges in count five as thirty years and five years respectively, consecutive to each other and consecutive to counts one and two. His brief to the court of appeals in the 1985 case similarly described his sentence.

¶42. The defendant's brief asserts that he always believed that the written judgment of conviction was in effect and that he did not learn otherwise until he was notified by the Department of Corrections in 1998. He asserts that "the prior Motions were basically ’boiler plate' Motions and that he did not know that the Motion stated life plus seventy (70) years." Even if under certain circumstances we might give some credence to an offender's assertion that he was a victim of "boiler plate" motions, we do not in the present case. Numerous documents filed on the defendant's behalf support that the thirty-year sentence in count five was consecutive to the sentence in count two and that the sentence was life plus seventy years. Furthermore, the defendant himself filed a document describing his sentence as life plus seventy years. Under these circumstances, the defendant's claim that he expected the lower sentence cannot be given credence.

¶43. The defendant further argues that he is prejudiced if the corrected judgment is allowed to stand because this "change in the sentence" could affect the Department of Corrections' decision to change his placement. The clerical correction to the written judgment of conviction is not a "change in the sentence"; it merely correctly reflects the actual sentence imposed on the defendant by the circuit court. The defendant's opportunity to change placement is not affected by the correction in the judgment; it is affected by the oral pronouncement.

¶ 44. Accordingly, we conclude that even though more than twenty years have elapsed between the written judgment of conviction and the corrected judgment, there is no prejudice to the defendant under the circumstances of this case in correcting the clerical error in the written judgment of conviction.

¶ 45. The defendant's argument based on Wis. Stat. § 893.40 is also not persuasive. Section 893.40 limits actions on judgments. It provides that an action upon a judgment or decree of a court of record of any state shall be commenced within twenty years after the judgment or decree is entered or be barred. This statute of limitations makes no distinction between judgments in civil and criminal actions. The State and the defendant disagree whether § 893.40 applies to a judgment in a criminal action and, if § 893.40 is applicable to criminal judgments, whether a motion to correct a clerical error in a written judgment of conviction to reflect an unambiguous oral pronouncement of sentence in a criminal case is an "action upon a judgment" within Wis. Stat. § 893.40.

¶ 46. The defendant argues that Wis. Stat. §972.11(1) makes §893.40 applicable to criminal cases. Section 972.11, which we discussed previously, provides that rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of the section or rule manifestly requires a different construction. Statutes of limitations are substantive rules of law rather than rules of evidence or practice. Betthauser v. Medical Protective Co., 172 Wis. 2d 141, 149, 493 N.W.2d 40 (1992). Accordingly, the statute of limitations embodied in § 893.40 is not a rule of evidence or practice and therefore is not applicable to criminal judgments through § 972.11.

¶ 47. Even if we were to assume that Wis. Stat. § 893.40 applies to written judgments of conviction, neither party has cited any cases helpful in deciding whether a correction of a clerical error in the sentence portion of a written judgment of conviction is an "action on a judgment" under Wis. Stat. § 893.40. This court has been unable to find any cases supporting the position that correction of such a clerical error is an "action upon a judgment." Indeed the cases we have found state that a court may make a clerical correction to a written judgment of conviction "at any time." Because correction of a clerical error is designed to conform the record to the court's intention and not to relitigate the merits, the policy of finality embodied in the statute of limitations does not come into play.

¶ 48. Nothing in chapter 893 or any other provision of the statutes indicates that the legislature intended Wis. Stat. § 893.40 to govern the correction of clerical errors in a written judgment of conviction. Accordingly, we conclude that the legislature did not intend the twenty-year statute of limitations to apply to either the state's or an offender's request to correct a clerical error in the sentence portion of a written judgment of conviction to reflect accurately the unambiguous oral pronouncement of sentence.

V

¶ 49. In sum, we conclude that the office of the clerk of circuit court does not have the authority to correct a clerical error in the sentence portion of a written judgment of conviction. We further conclude that a circuit court, not the office of the clerk of circuit court, must determine the merits of a request for a correction in the sentence portion of a written judgment of conviction because of an alleged clerical error. The circuit court may correct the clerical error in the sentence portion of a written judgment of conviction, or the circuit court may direct the clerk's office to make such a correction.

¶ 50. We further hold that the circuit court has discretion to determine whether an offender should receive notice and a hearing before any correction is made to an alleged clerical error in the sentence portion of a written judgment of conviction. Notice and a hearing ensure that the defendant has an opportunity to be heard "at a meaningful time and in a meaningful maimer."

¶ 51. In the present case, the circuit court, the court of appeals, and this court have considered the defendant's challenges to the correction of a clerical error in his written judgment of conviction and have concluded that his arguments are without merit. The defendant has had his day in court, and his challenges to the correction have been fully considered. It is not necessary to remand the defendant's case to the circuit court to determine the questions of law involved in correcting the sentence portion of the written judgment of conviction in the present case.

¶ 52. Finally, we conclude that neither the doctrine of laches nor Wis. Stat. § 893.40 bars a correction of a clerical error in the written judgment of conviction in the present case.

¶ 53. For the reasons stated, we affirm the decision of the court of appeals denying the defendant's motion for postconviction relief although our rationale differs from that of the court of appeals.

By the Court. — The decision of the court of appeals is affirmed.

       This court determines these questions of law independently from the circuit court and court of appeals, benefiting from their analyses.

       All subsequent references to the Wisconsin Statutes are to the 1997—98 version unless otherwise indicated.

       The defendant does not seek a remand. The defendant asks that the amended written judgment of conviction be vacated and the original written judgment of conviction be allowed to stand as a matter of law.

       The entire sentence is set forth in the written judgment of conviction as follows:

        It is adjudged that the defendant is hereby committed to the Wisconsin State Prisons for...
      COUNT ONE: [Life Imprisonment];
      COUNT TWO: 30 years as to Armed Robbery, consecutive to count 1; plus five years for concealing, consecutive to first portion of this count (30 years);
      COUNT THREE: 30 years as to Armed Robbery, concurrent with count 1; plus five years for concealing, to run consecutive to first portion of this count (30 years) and concurrent with count 1;
      COUNT FOUR: 30 years as to Armed Robbery, concurrent with count 1; plus five years for concealing, to run consecutive to first portion of this count (30 years) and concurrent with count 1;
      COUNT FIVE: 30 years as to Armed Robbery, consecutive to count 1, plus five years for concealing, to run consecutive to first portion of this count (30 years) and consecutive to count 2. Said sentences to run concurrent with any other sentence defendant may be serving at this time.

       Because the sentence in count two also was consecutive to the sentence in count one, the written judgment of conviction appears to make the thirty years under count five concurrent with, rather than consecutive to, the sentence under count two.

       The "clerical error" in this case involves a "failure to accurately record a statement or action by the court. ..." 6 James Wm. Moore et al., Moore's Federal Practice § 636.02 (3d ed." 2000).
      It may not be easy to determine whether an error should be classified as clerical. In Bostwick v. Van Vleck, 106 Wis. 387, 390, 82 N.W. 302 (1900), the court stated:
      The test to be applied in determining whether an error in a judgment is of a judicial character, or a mere clerical mistake which may be corrected in the court where it was made at any time, saying intervening rights of third parties and with due regard to equitable considerations, is whether the error relates to something that the trial court erroneously omitted to pass upon or considered and passed upon erroneously, or a mere omission to preserve of record, correctly in all respects, the actual decision of the court, which in itself was free from error.

        See also Utah v. Lorrah, 761 P.2d 1388, 1389 (Utah 1988) ("A clerical error, as contradistinguished from judicial error, is not 'the deliberate result of the exercise of judicial reasoning and determination.'" (quoting State v. Mossman, 706 P.2d 203, 204 (Or. Ct. App. 1985))).

         State v. Schordie, 214 Wis. 2d 229, 231 n.1, 570 N.W. 2d 881 (Ct. App. 1997) (citing State v. Perry, 136 Wis. 2d 92, 114, 401 N.W.2d 748 (1987)). In Schordie, the court of appeals noted that "when there is a conflict between the judgment of conviction and an unambiguous record of the trial court's pronouncement, the record is controlling"; the court of appeals "modiflied] the judgment of conviction to reflect the correct sentence."

       State's Brief at 24.

         See Hayes v. State, 46 Wis. 2d 93, 101-02, 175 N.W.2d 625 (1970), rev'd on other grounds, State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973) (stating that "[tjhere seems to be no question that a court has the power to correct formal or clerical errors. . .at any time" but holding that the reduction of defendant's criminal sentence was a modification rather than correction of a clerical error); Packard v. Kinzie Ave. Heights Co., 105 Wis. 323, 325-26, 81 N.W. 488 (1900) (allowing the court to correct a clerical error in a foreclosure judgment, and stating "[t]hat such mistakes can be corrected by the court in which they occurred, regardless of the time limit upon the power of the court to correct judicial errors, is too well settled to require any extended argument or citation of authorities"); Hoffman v. State, 88 Wis. 166, 173-77, 59 N.W. 588 (1894) (aliowing court to amend record of criminal case that mistakenly failed to show defendant's presence during trial, and stating that "the court has power, after the term, to correct a mistake in the entry of its judgment, so as to make the record conform to the judgment actually pronounced").

        Hayes is still good law for the proposition that a court can correct a clerical error at any time. See Krueger v. State, 86 Wis. 2d 435, 440, 272 N.W.2d 847 (1979) (quoting Hayes with approval).
      For federal courts, Rule 36 of the Federal Rules of Criminal Procedure similarly authorizes the courts to correct clerical errors in written judgments at any time. Federal courts have this power apart from Rule 36. Kennedy v. Reid, 249 F.2d 492 (D.C. Cir. 1957).

       Wisconsin Stat. §806.06(2) provides: "RENDITION, PERFECTION AND ENTRY OF JUDGMENT. The judge or the clerk upon the written order of the judge may sign the judgment. The judgment shall be entered by the clerk upon rendition."
      Section 806.06(l)(a) provides: "A judgment is rendered by the court when it is signed by the judge or by the clerk at the judge's written direction."

       Wisconsin Stat. §972.11(1) provides: "the rules of evidence and practice in civil actions shall be applicable in all criminal proceedings unless the context of a section or rule manifestly requires a different construction."

       Wisconsin Stat. § 971.26 provides: "FORMAL DEFECTS. No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant."

       The defendant claims that he has been prejudiced because his total sentence may impact his efforts to receive a reclassification in the prison system from medium security to minimum security.
      The State argues that postconviction motions and briefs filed on behalf of the defendant, along with a pro se motion filed by the defendant, show that he knew that his sentence was life plus seventy years. Because defendant was aware of the true length of his sentence, the State concludes that the defendant has not been prejudiced by the correction to the written judgment of conviction.

       Defendant's Brief at 8.

       Using the same rationale, we conclude that the defendant was not deprived of constitutional rights by his failure to get notice or a hearing. See Cook v. United States, 426 F.2d 1358, 1360 (5th Cir. 1970), cert. denied, 398 U.S. 932 (1970); Flowers v. Oklahoma, 356 F.2d 916, 917 (10th Cir. 1966); Sampson v. North Dakota, 506 N.W.2d 722, 727 (N.D. 1993).

       Advisory Committee Notes to Rule 36 of the Federal Rules of Criminal Procedure.

       Several commentators suggest that the better practice is for the offender to be present when the court corrects clerical errors in judgments. See, e.g., 6 James Wm. Moore et al., Moore's Federal Practice § 636.04[3][a] (3d ed. 2000); 3 Charles Alan Wright, Federal Practice and Procedure § 534 (2d ed. 1982); 5 Mark S. Rhoades, Orfield's Criminal Procedure Under the Federal Rules § 36:10 (2d ed. 1987). See also Kennedy v. Reid, 249 F.2d 492, 497 (D.C. Cir. 1957) (better practice to order notice to the offender but reversal is not required when no substantial rights of the defendant have been affected).

       Numerous states have adopted rules or laws identical to Federal Rule of Criminal Procedure 36. See, e.g., 17 Ariz. Rev. Stat. R. Crim. P. 24.4 (West 1998); Iowa Code Ann. § 813.2, R. 22(3)(g) (West 1994); Nev. Rev. Stat. Ann. § 176.565 (Michie 1997).
      Several other states have adopted rules or laws similar to Federal Rule of Criminal Procedure 36. See, e.g., Ky. R. Ann. R. Crim. P. 10.10 (Michie 2000); Mass. Ann. Laws R. Crim. P. 42 (Lexis 1997); R.I. Ct. R. Ann. Super. R. Crim. P. 36 (Lexis 2000).

       The court of appeals did not consider these arguments, which were raised for the first time in the defendant's reply brief.

        See Smart v. Dane County Bd. of Adjusters, 177 Wis. 2d 445, 458, 501 N.W.2d 782, 787 (1993).

         State v. Prihoda, No. 85-2140 (Ct. App. Oct. 22, 1986), unpublished order.

       Defendant's Brief at 7.

       Wisconsin Stat. § 893.40 provides: "ACTION ON JUDGMENT OR DECREE; COURT OF RECORD. Except as provided in s. 846.04(2) and (3), action upon a judgment or decree of a court of record of any state or of the United States shall be commenced within twenty years after the judgment or decree is entered or be barred.”

       Hayes v. State, 46 Wis. 2d 93, 101-02, 175 N.W.2d 625 (1970), rev'd on other grounds, State v. Taylor, 60 Wis. 2d 506, 210 N.W.2d 873 (1973).

       6 James Wm. Moore et al., Moore's Federal Practice § 636.04[1] (3d ed. 2000).

         Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

         State v. Amos, 153 Wis. 2d 257, 281, 450 N.W.2d 503 (1989) (defendant who should have received notice and hearing before circuit court corrected sentence based on erroneous presentence credit nonetheless had ample opportunity for review through postconviction motion).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Judith A. Pinchar, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant, v. Judith A. Pinchar, Respondent.
    Supreme Court

      No. 00-1487-D.

      Filed November 14, 2000.

    2000 WI 122
    (Also reported in 618 N.W.2d 869.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Judith A. Pinchar and the Board of Attorneys Professional Responsibility (Board) pursuant to SCR 21.09(3m) setting forth findings of fact and conclusions of law concerning Attorney Pinchar's professional misconduct for failing to cooperate with the Board's investigation; failing to act with reasonable diligence and promptness in representing a client; failing to keep a client reasonably informed about the status of a matter and failing to promptly comply with a client's reasonable request for information; and engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. The parties also stipulated to a 60-day suspension of Attorney Pinchar's license to practice law as a discipline for that misconduct.

¶ 2. We approve the stipulation and determine that the seriousness of Attorney Pinchar's misconduct warrants the suspension of her license to practice law for 60 days.

¶ 3. Attorney Pinchar was admitted to the practice of law in Wisconsin in 1982 and practices in the Milwaukee area. In 1999, she consented to a Board imposed private reprimand for misconduct consisting of failing either to settle a client's claim or file suit before the statute of limitations ran; failing to respond to the client's attempts to contact her and failing to inform the client that the statute of limitations had passed; and failing to respond to inquiries from Board staff investigating the matter.

¶ 4. On June 16,1999, the Board received a letter from one of Attorney Pinchar's clients regarding her alleged failure to return file materials. This client had previously filed a grievance against Attorney Pinchar which resulted in the private reprimand referred to above. On June 23, 1999, a Board staff investigator sent a letter to Attorney Pinchar requesting that she provide written confirmation that she had given the file to the client. Attorney Pinchar failed to respond. A second letter was sent to Attorney Pinchar via both certified mail and first-class mail on July 14, 1999. Attorney Pinchar received this letter but did not respond to it. A third letter was sent on September 23, 1999, citing Attorney Pinchar's obligations under the Supreme Court Rules to cooperate with the Board and requesting a written response within 20 days. Attorney Pinchar again did not respond.

¶ 5. On November 9, 1999, a Notice to Attend Investigative Interview in the Board's offices on November 18 was mailed to Attorney Pinchar with the request that she return a signed admission of service. When no admission of service was received, the notice was sent to a process server and Attorney Pinchar was personally served on November 16. Attorney Pinchar did not appear at the appointed time on November 18. She called the Board's office and said she would submit a written response to the inquiry the following morning. The promised response was not sent. Board staff prepared an investigative report recommending that the Board seek a temporary suspension of Attorney Pinchar's license based on her failure to cooperate. That report was both mailed and hand-delivered to Attorney Pinchar's office. Attorney Pinchar delivered a response to the grievance on December 3,1999.

¶ 6. In a second matter, on September 13, 1999, the Board received a grievance from another client alleging that Attorney Pinchar failed to respond to that client's attempts to contact her. On September 16, 1999, a Board staff investigator sent an initial letter of inquiry to Attorney Pinchar requesting a response to the grievance within 20 days. Attorney Pinchar failed to respond to the letter. A second letter was sent on October 12,1999. Again, no response was received.

¶ 7. A Notice to Attend Investigative Interview was personally served on Attorney Pinchar on November 16, 1999, informing her that she was to attend an investigative interview in the Board's offices on November 18. Attorney Pinchar did not appear at the appointed time but called the Board's offices and said she would submit a written response to this inquiry the following day at the same time she promised to serve a response to the Board's inquiry in the matter involving the first client. The promised response was not sent, and Board staff prepared an investigative report recommending that the Board seek a temporary suspension of Attorney. Pinchar's license based on her failure to cooperate. That report was both mailed and hand-delivered to Attorney Pinchar's office on November 23,1999.

¶ 8. In a third matter, in August of 1998, a man retained Attorney Pinchar to represent his son, who had previously received a stayed prison sentence and was placed on probation. The son's probation was subsequently revoked. He wanted the circuit court to reverse the administrative decision to revoke his probation. A petition for writ of certiorari was filed on October 8,1998. A writ issued; the record was submitted by the division of hearings and appeals; and a briefing schedule was issued by the circuit court on November 6,1998.

¶ 9. Between the fall of 1998 and May 1999, Attorney Pinchar represented to her client that his petition was pending in Milwaukee County Circuit Court. Her brief in support of the petition was due in either December 1998 or January 1999. She never filed the brief. The circuit court called Attorney Pinchar three times in early March regarding her failure to file a brief in support of the petition. On March 22, 1999, the circuit court ordered the petition dismissed for failure to prosecute.

¶ 10. Attorney Pinchar did not inform her client of the court's dismissal of his petition. Instead, in May of 1999, she communicated to him that she had filed a brief in support of his petition and that a decision was pending. In June of 1999, her client's father hired another attorney. That attorney checked the status of the petition and learned that it had been dismissed for failure to prosecute.

¶ 11. In the summer of 1998, the client's wife filed a petition for divorce in Arkansas. The client's father retained Attorney Pinchar to represent his son in the divorce proceeding. Attorney Pinchar filed an objection to the jurisdiction of the court and an answer to the divorce petition. Attorney Pinchar was not licensed to practice law in Arkansas and she did not seek admission pro hac vice. Filing the answer while unlicensed in Arkansas and not otherwise permitted to appear there violated the regulation of the legal profession in Arkansas.

¶ 12. Attorney Pinchar filed nothing further in the Arkansas divorce case. In April of 1999, her client's father retained an Arkansas attorney, who discovered that the divorce had been granted in December 1998. The client's father had paid Attorney Pinchar a retainer of $1500 for her services. In June of 1999, she refunded $1000 and told her client's father she had reserved $500 to assist in hiring local counsel for his son in the divorce matter. Attorney Pinchar neither . hired local counsel nor refunded the remaining $500.

¶ 13. On July 15, 1999, the Board received a grievance from the client's father and on August 19, 1999, it received a statement from the client indicating that he joined his father in the grievance against Attorney Pinchar. On August 6, 1999, a Board staff investigator sent an initial letter of inquiry to Attorney Pinchar requesting a response to the grievance within 20 days. Attorney Pinchar did not respond to this letter. A second letter was sent on September 2, 1999. Attorney Pinchar received that letter but did not respond.

¶ 14. This grievance was assigned to the Board's District 2 Professional Responsibility Committee (PRC). An attorney member of the PRC was assigned to investigate the grievance. He sent a letter to Attorney Pinchar on October 22,1999, asking her to contact him. Attorney Pinchar failed to respond. The PRC investigator had a chance meeting with Attorney Pinchar at a courthouse during which he asked that she contact him. In November of 1999, Attorney Pinchar and the investigator met in his offices to discuss the matter.

¶ 15. The parties stipulated that by failing to respond to letters from staff and failing to appear at an investigative interview, despite being personally served, and by ultimately supplying a grievance response only under threat of suspension, Attorney Pinchar failed to cooperate with the investigation of the three grievances, in violation of SCR 21.03(4) and SCR 22.07(3) and (4).

¶ 16. The parties also stipulated that by failing to take proper and timely steps to protect her client's interest by securing local counsel in the Arkansas divorce action, Attorney Pinchar failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3. In addition, the parties stipulated that by failing to inform her client that his petition for certiorari had been dismissed and by failing to inform him that the divorce had been granted, Attorney Pinchar failed to keep a client reasonably informed about the status of a matter and failed to promptly comply with a client's reasonable request for information, in violation of SCR 20:1.4(a).

¶ 17. The parties further stipulated that by falsely informing her client that she had filed a brief in support of the petition for writ of certiorari and that she was awaiting the court's decision when, in fact, she had filed no brief and the petition had already been dismissed, Attorney Pinchar engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c). The parties also stipulated that by providing legal representation in an action pending in a jurisdiction in which she was unlicensed, and by failing to seek permission from the court in Arkansas, or seek admission pro hac vice, before filing an answer on her client's behalf, Attorney Pinchar practiced law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction, in violation of SCR 20:5.5(a).

¶ 18. In addition to the 60-day license suspension, the parties stipulated that Attorney Pinchar refund the remaining $500 to the client's father.

¶ 19. We adopt the findings of fact and conclusions of law set forth in the parties' stipulation. Attorney Pinchar's failure to cooperate with the Board's investigation of the three grievances and her handling of the petition for writ of certiorari and Arkansas divorce action are serious failings warranting a suspension of her license. A 60-day suspension of her license to practice law is appropriate discipline for her professional misconduct.

¶ 20. It Is Ordered that the license of Judith A. Pinchar to practice law in Wisconsin is suspended for a period of 60 days, effective December 19,2000.

¶ 21. It Is Further Ordered that Judith A. Pinchar comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 22. It Is Further Ordered that Judith A. Pinchar refund the remaining $500 to her client's father within 30 days of the date of this order. If the $500 refund is not made within that time, the license of Judith A. Pinchar to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 23. It Is Further Ordered that within 60 days of the date of this order Judith A. Pinchar pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Judith A. Pinchar to practice law in Wisconsin shall remain suspended until further order of the court.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation and the Supreme Court Rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, the body will be referred to as "the Board" and all references to Supreme Court Rules will be to those in effect prior to October 1, 2000.

       Former SCR 21.09(3m) provided:
      (3m) The board may file with a complaint a stipulation by the board and the respondent attorney to the facts, conclusions of law and discipline to be imposed. The supreme court may consider the complaint and stipulation without appointing a referee. If the supreme court approves the stipulation, it shall adopt the stipulated facts and conclusions of law and impose the stipulated discipline. If the supreme court rejects the stipulation, a referee shall be appointed pursuant to sub. (4) and the matter shall proceed pursuant to SCR chapter 22. A stipulation that is rejected has no evidentiary value and is without prejudice to the respondent's defense of the proceeding or the board's prosecution of the complaint.

       Former SCR 21.03(4) provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the hoard or administrator.

       Former SCR 22.07(3) and (4) provided:
      (3) The administrator or committee may compel the respondent to answer questions, furnish documents and present any information deemed relevant to the investigation. Failure of the respondent to answer questions, furnish documents or present relevant information is misconduct. The administrator or a committee may compel any other person to produce pertinent books, papers and documents under SCR 22.22.
      (4) The duty of the respondent to cooperate with the board's investigation does not affect the respondent's privilege against self-incrimination, but the privilege may be claimed only in respect to matters which may subject the respondent to criminal liability.

       SCR 20:1.3 provides:
      Diligence
      A lawyer shall act with reasonable diligence and promptness in representing a client.

       SCR 20:1.4(a) provides:
      (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

       SCR 20:5.5(a) provides:
      A lawyer shall not:
      (a) practice law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction.


text:
    In the Matter of Disciplinary Proceedings Against Reesa Evans, Attorney at Law. Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Reesa Evans, Respondent-Appellant.
    Supreme Court

      No. 99-1011-D.

      Submitted on briefs October 5, 2000.

    Decided November 17, 2000.

    2000 WI 124
    (Also reported in 618 N.W.2d 873.)

      For the respondent-appellant there were briefs by Hal Harlowe and Hal Harlowe and Associates, S.C., Madison.
    For the complainant-respondent there was a brief by Robert G. Krohn and Roethe, Krohn, Pope, McCarthy & Haas, LLP, Edgerton.
   PER CURIAM.

¶ 1. Attorney Reesa Evans appealed from a single finding of the referee, that she fabricated a letter to a client dated March 24, 1997. Attorney Evans also appealed from the referee's recommendation that her license to practice law be suspended for two years.

¶ 2. We determine that the referee's finding of fact that Attorney Evans fabricated the letter is supported by satisfactory and convincing evidence. We determine further that the egregiousness of that misconduct, combined with the referee's other findings of misconduct which Attorney Evans does not dispute, warrants the suspension of her license to practice law for two years.

¶ 3. Attorney Evans was admitted to the practice of law in Wisconsin in 1979 and practices in Madison. She has been disciplined for professional misconduct on three previous occasions. In 1994 she agreed to a private reprimand for failing to hold property of a client in trust, separate from her own property, and for failing to promptly deliver to a client funds or other property that the client was entitled to receive. In 1995 she agreed to a private reprimand for engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. According to the summary of facts in the letter of reprimand, she altered an expiration date on a document.

¶ 4. In 1997 Attorney Evans agreed to a public reprimand for conduct in two separate matters involving failing to act with reasonable diligence and promptness in representing a client, failing to keep a client reasonably informed about the status of a matter and failing to comply with reasonable requests for information, and failing to explain the matter to the extent reasonably necessary to permit the client to make an informed decision regarding representation.

¶ 5. The referee, Attorney John Schweitzer, made findings of fact based on testimony and documentary evidence presented at a disciplinary hearing concerning Attorney Evans' representation of a number of clients. The referee found that in the course of representing these clients Attorney Evans engaged in inappropriate activity with respect to the handling of her client trust account. The referee found that by depositing personal funds into her trust account and writing checks for personal expenses out of her trust account, Attorney Evans failed to hold in trust, separate from her own property, the property of clients or third persons that was in her possession in connection with a representation, contrary to SCR 20:1.15(a).

¶ 6. The referee also found that by writing trust account checks to herself that were designated on the face of the checks as being attributable to the client but were not recorded on the ledger Attorney Evans allegedly kept for the client and by failing to keep any trust account records that would identify the purpose of sums she withdrew from funds belonging to her clients, Attorney Evans failed to keep complete and accurate records of transactions in her trust account, contrary to SCR 20:1.15(e). The referee also found that Attorney Evans failed to promptly deliver to a client funds that the client was entitled to receive and failed to render a full and accurate accounting regarding trust property, contrary to SCR 20:1.15(b). Further, the referee found that by representing to her clients that she was unable to pay them the balance owed because another check deposited to her account was returned when, in fact, there were insufficient funds in the trust account because of personal withdrawals she had made against the clients' money and by representing that checks written on her trust account were returned because a check a client had written to her bounced, Attorney Evans engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).

¶ 7. The referee also found that by failing to respond to inquiries of clients or to meet with them regarding the status of their case, Attorney Evans failed to keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information, contrary to SCR 20:1.4(a). The referee also found that Attorney Evans failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation, contrary to SCR 20:1.4(b). Attorney Evans did not appeal from any of these findings of fact or conclusions of law by the referee.

¶ 8. The subject of this appeal involves Attorney Evans' representation of a client who was convicted of armed robbery and first-degree intentional homicide by a jury in Kenosha county in 1987. His conviction was affirmed on appeal. Attorney Evans consulted with the client regarding the need to proceed in state court on a Wis. Stat. § 974.06 (1993-94) motion raising the issue of ineffective assistance of trial counsel. On September 28,1994, the client's father retained Attorney Evans by paying her a $3000 retainer fee. The retainer agreement included provisions requiring Attorney Evans to consult with the client's father prior to hiring any experts, consultants or investigators and it gave the client's father the right to discharge Attorney Evans at any time. The retainer agreement did not establish the client's father as a co-client with his son, nor did it establish an attorney-client relationship between the client's father and Attorney Evans.

¶ 9. On February 5, 1995, the client sent a letter to Attorney Evans outlining his concern about the lack of communication from her. As a result of the letter, Attorney Evans met with the client and the two agreed that Attorney Evans would continue to represent the client and would review transcripts and research appellate issues.

¶ 10. Attorney Evans was unexpectedly hospitalized on December 6, 1995. A letter was prepared on December 26, 1995, to be sent to her clients informing them of the hospitalization but neither the client nor his father received the letter. By letter of May 14,1996, Attorney Evans informed the client that she had been hospitalized and would be returning to work for a few hours a week. She said that during her illness she had written to authorities in Arizona in an attempt to obtain records relevant to his case.

¶ 11. On July 16, 1996, the client received a letter from Attorney Evans’ receptionist indicating that Attorney Evans would visit the client on July 26 at the correctional institution where he was incarcerated. Attorney Evans did not appear at the correctional institution on that date. In the fall of 1996, the client's father wrote to Attorney Evans requesting the opportunity to meet with her. Attorney Evans did not respond, nor did she meet with the client's father.

¶ 12. In December of 1996, the Wisconsin division of the American Civil Liberties Union (ACLU) sent information to all inmates in the Wisconsin prison system notifying them about a recent court decision and a federal act that put time limits on federal habeas corpus actions. The Anti-terrorism Act of 1996 established a one-year time limit for filing federal habeas corpus petitions. Existing federal case law interpreted the Act as requiring filing within a reasonable time in those cases that had been decided before the enactment of the Act. A reasonable time period was interpreted to mean one year. The federal decision indicated that, as to cases predating the Anti-terrorism Act, any federal habeas corpus petition filed on or before April 23,1997, would be timely.

¶ 13. When they learned of these new time limits, both the client and his father believed the only way to toll such time limits would be to commence a collateral proceeding under Wis. Stat. § 974.06 (1993-94) in Wisconsin state court before April 23,1997. In December of 1996, the client's father wrote to Attorney Evans outlining his and his son's concern about the deadline and whether it affected his son's case. Attorney Evans wrote to the client on February 2, 1997, but made no mention of the Anti-terrorism Act.

¶ 14. From December 1996 through April of 1997, the client's father continued to call and write Attorney Evans with increased anxiety and concern. The last letter was written on April 23, 1997. At that time the client's father indicated he was waiting for a telephone response from Attorney Evans. He did not hear from her. On that same day, the client filed a pro se Wis. Stat. § 974.06 (1993-94) motion in the trial court. That court denied a hearing and the client appealed. On August 19, 1998, the court of appeals reversed and ordered the trial court to conduct an evi-dentiary hearing on the issue raised in the motion.

¶ 15. The client's father filed a grievance against Attorney Evans for a failure to communicate with him and his son. On September 16, 1998, Attorney Evans sent a letter to the client saying she had had a conversation with an investigator in the public defender's office regarding the client's father's complaint. She attached a copy of a letter written on her letterhead, dated March 24,1997, and stated, "It appears that you never received the enclosed letter which I wrote to you back in March, 1997." The March 24,1997, letter indicated it was Attorney Evans' opinion that the recently enacted federal law and deadlines did not apply to the client's case.

¶ 16. The March 24,1997, letter contained a reference to the "federal public defender training program." Although the correct name of the program was the "federal public defender training group," no version of that name came into existence until May of 1998. The referee made findings of fact that the letter dated March 24, 1997, signed by Attorney Evans and described by her as having been written in March of 1997 was in fact not written at that time and that Attorney Evans' statement to Board investigators that she wrote to her client on March 24,1997, was untrue.

¶ 17. The referee found that by drafting the letter dated March 24,1997, after the fact and backdating it so that it would appear it was sent to the client on March 24, 1997, Attorney Evans engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, contrary to SCR 20:8.4(c). The referee also concluded that by falsely representing to Board investigators that the letter dated March 24,1997, was sent to the client on that date, Attorney Evans made a misrepresentation in a disclosure to the Board and failed to cooperate with the Board in such investigation, con-traxy to SCR 21.03(4) and SCR 22.07(2).

¶ 18. Attorney Evans disputes the referee's finding that she fabricated the letter dated March 24,1997. She testified at the hearing that after her client posed the question regarding federal habeas corpus law, with which she was unfamiliar,.she read the relevant statute and applicable, case law. She testified when she was still not confident with the results of her research, she called the federal public defender in Chicago. She said that office was unable to assist her, so she called the federal public defender's office in San Diego. That office was also not able to help her, but the person she spoke to gave her an 800 number in Washington, D.C. and she said she called that number.

¶ 19. Attorney Evans testified she did not know how the phone in the Washington, D.C. office was answered but as far as she knew she was calling the federal public defender. She told the person who answered that she was calling about a habeas corpus question and she was transferred to someone else. She testified she did not recall if she talked to a man or a woman, but whoever she talked to confirmed her research was correct. She testified at that point she wrote the March 24,1997, letter to her client.

¶ 20. Attorney Evans notes that Thomas Hutchi-son, who works with the federal public defender for the District of Columbia as part of the "federal defender training group," also testified at the hearing. The "federal defender training group" is the name the organization has used since May of 1998. Prior to that time it was known as the sentencing guidelines group. Mr. Hutchison testified that in March of 1997 his group was physically located in the office of the federal public defender for the District of Columbia but the group's phones rang on a separate system from the rest of the public defender's phones and he could not rule out the possibility that someone walking by the phones did not pick up the phone and answer "public defender's office." He said that would have been an unusual occurrence, however.

¶ 21. Attorney Evans states that the evidence presented to the Board indicates there were four attorneys working in the sentencing guidelines group in March of 1997. One of those attorneys was Fran Pratt. Ms. Pratt maintained a record of the names of people who had called, and her computer records reflect that she spoke to Attorney Evans but the records do not identify the date of the call or the subject matter.

¶22. Attorney Evans does not dispute her client's claim that he never received the March 24, 1997, letter but she insists she did author and send it on that date. She argues that the referee's conclusion that she fabricated the letter was based almost entirely on the inference the referee drew from her use of the term "federal public defender training program." The referee concluded that since the office was first called the "federal public defender training group" in 1998, the March 24,1997, letter using that name must be a fabrication. Attorney Evans argues that the referee's analysis ignores the fact that her description of the group in the letter was generically correct because the office she called in Washington, D.C. was in fact an office of the federal public defender and was what she reasonably believed to be part of its training program.

¶ 23. We conclude that the referee's finding that Attorney Evans fabricated the March 24,1997, letter is supported by clear and convincing evidence.

¶ 24. The record shows that Attorney Evans' client wrote to her on February 27, 1997, asking her opinion on the effect of the Anti-terrorism Act. He wrote again on April 13,1997, saying,

I have not heard from you since your February 2nd correspondence, and I have written to you twice since then. . . .1 am confused and uncertain and would simply like to know whether you are still handling my case, and if so, whether the April 23rd deadline will affect my case in terms of filing in federal court down the line.

¶ 25. The client's father testified at a deposition given in this proceeding that between December 1996 and April 1997 he made. 30 to 50 phone calls to Attorney Evans but was never able to reach her. He said on most occasions he left a message on her answering machine but on at least one occasion he spoke to someone in her office and left a message asking Attorney Evans to call him back. She never responded.

¶ 26. The client's father wrote letters to Attorney Evans on April 6, April 21 and April 23, 1997, imploring Attorney Evans to get in touch with them. Again, she never replied. It is clear from the letters sent by the client and his father in April of 1997 that the client never received the March 24, 1997, letter. Although Attorney Evans continues to insist that she did send the letter on March 24, 1997, expressing her opinion that the Anti-terrorism Act did not affect her client's case, she fails to explain why she did not respond to any of the increasingly desperate requests for her opinion on that very subject made by both her client and his father throughout April of 1997.

¶ 27. While it is possible that Attorney Evans did contact the sentencing guidelines group in Washington, D.C. in March of 1997, it does not automatically follow that she wrote a letter to her client at that time. If, as she claims, the letter was sent on March 24,1997, the flurry of communications from her client and his father in the weeks leading up to April 23,1997, should have alerted Attorney Evans to the fact that the letter was never received. This, in turn, should have caused her to get in touch with her client and/or his father and furnish them with another copy of the letter. The only reasonable inference that can be drawn from the record is the one drawn by the referee: the letter was not written in March of 1997 but was drafted much later, probably around the time the Board commenced its investigation. The referee's findings in this regard have not been shown to be clearly erroneous. Consequently, we adopt them.

¶ 28. Attorney Evans also appeals from the referee's recommendation that her license to practice law be suspended for two years. She notes that the recommended two-year suspension stems largely from the referee's finding that she fabricated the March 24, 1997, letter. She says if this court disagrees with the referee's findings concerning the letter, then the discipline imposed should be dramatically reduced. In the alternative, she asserts that even if the referee's disputed factual finding about the March 24,1997, letter should be adopted, a reduction in the recommended sanction is still appropriate.

¶ 29. Attorney Evans asserts that a two-year suspension is overly harsh. She points out that throughout her career she has worked for the most needy criminal defendants and her practice has involved helping people who are often otherwise poorly represented. She says her contribution to the legal profession and her character is attested to by the various character witnesses who testified on her behalf at the hearing, including clients, fellow attorneys, judges and district attorneys.

¶ 30. The Board takes the position that the trust account violations demonstrate a proven pattern of conduct that goes beyond the serious problem of putting client funds to her own personal use. The Board notes that Attorney Evans used her client trust account as a personal account and failed to keep records that would enable her to distinguish client funds from her own funds. She then wrote checks on an account when there were clearly insufficient funds to cover them and she lied to her clients about the reasons she was unable to pay them the sums they were due.

¶ 31. The Board also asserts that the creation of a backdated letter as a means of responding to allegations of misconduct is disturbing and the March 24, 1997, letter represents an act of deception and dishonesty toward both her client and the Board. The Board contends that no number of character witnesses can rehabilitate Attorney Evans since her professional misconduct is no less serious in the face of accolades offered by her professional peers.

¶ 32. Having considered the circumstances surrounding Attorney Evans' professional misconduct, including the misuse of her client trust account, her failure to keep her clients reasonably informed about the status of their cases and promptly comply with reasonable requests for information, and her fabrication of the March 24,1997, letter, we determine that a two-year license suspension is appropriate. That determination takes into account the mitigating factors of Attorney Evans' representation of people who are often otherwise poorly represented and her character as attested to by various -witnesses.

¶ 33. By her mishandling of her client trust account and the fabrication of a letter, Attorney Evans has shown a -willingness to place her own financial interest above the welfare of her clients and has also established a pattern of deception to keep her professional misconduct from being discovered. The suspension we impose is intended not only to impress upon Attorney Evans the gravity of her professional misconduct but also to put other attorneys on notice of the degree of seriousness with which this court views conduct of this nature.

¶ 34. It Is Ordered that the license of Reesa Evans to practice law in Wisconsin is suspended for a period of two years, effective December 22, 2000.

¶ 35. It Is Further Ordered that within 60 days of the date of this order, Reesa Evans pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid -within the time specified and absent a showing to this court of her inability to pay the costs within that time, the license of Reesa Evans to practice law in Wisconsin shall remain suspended until further order of the court.

¶ 36. It Is Further Ordered that Reesa Evans comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 37. It Is Further Ordered that the Board's second motion for temporary suspension of Attorney Evans' license to practice law in Wisconsin and Attorney Evans' motion to modify this court's June 29,1999, order regarding the maintenance of her client trust account are both dismissed as moot.

       During the course of this proceeding, the Board filed a motion seeking the temporary suspension of Attorney Evans' license, asserting that in view of her mishandling of her client trust account, her continued practice of law posed a threat to the interests of the public and the administration of justice. By order dated June 29,1999, this court denied the Board's motion but imposed a number of conditions on Attorney Evans' continued practice to ensure that her trust account was operated in full compliance with the applicable professional conduct rules.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation and the Supreme Court rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, the body will be referred to as "The Board" and all references to Supreme Court Rules will be to those in effect prior to October 1, 2000.
      SCR 20:1.15(a) provides:
      (a) A lawyer shall hold in trust, separate from the lawyer's own property, that property of clients and third persons that is in the lawyer's possession in connection with a representation or when acting in a fiduciary capacity. Funds held in connection with a representation or in a fiduciary capacity include funds held as trustee, agent, guardian, personal representative of an estate, or otherwise. All funds of clients and third persons paid to a lawyer or law firm shall be deposited in one or more identifiable trust accounts as provided in paragraph (c). The trust account shall be maintained in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The trust account shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. No funds belonging to the lawyer or law firm, except funds reasonably sufficient to pay or avoid imposition of account service charges, may be deposited in such an account. Unless the client otherwise directs in writing, securities in bearer form shall be kept by the attorney in a safe deposit box in a bank, savings bank, trust company, credit union, savings and loan association or other investment institution authorized to do business and located in Wisconsin. The safe deposit box shall be clearly designated as "Client's Account" or "Trust Account" or words of similar import. Other property of a client or third person shall be identified as such and appropriately safeguarded. If a lawyer also licensed in another state is entrusted with funds or property in connection with an out-of-state representation, this provision shall not supersede the trust account rules of the other state.

       SCR 20:1.15(e) provides:
      (e) Complete records of trust account funds and other trust property shall be kept by the lawyer and shall be preserved for a period of at least six years after termination of the representation. Complete records shall include: (i) a cash receipts journal, listing the sources and date of each receipt, (ii) a disbursements journal, listing the date and payee of each disbursement, with all disbursements being paid by check, (iii) a subsidiary ledger containing a separate page for each person or company for whom funds have been received in trust, showing the date and amount of each receipt, the date and amount of each disbursement, and any unexpended balance, (iv) a monthly schedule of the subsidiary ledger, indicating the balance of each client's account at the end of each month, (v) a determination of the cash balance (checkbook balance) at the end of each month, taken from the cash receipts and cash disbursement journals and a reconciliation of the cash balance (checkbook balance) with the balance indicated in the bank statement, and (vi) monthly statements, including canceled checks, vouchers or share drafts, and duplicate deposit slips. A record of all property other than cash which is held in trust for clients or third persons, as required by paragraph (a) hereof, shall also be maintained. All trust account records shall be deemed to have public aspects as related to the lawyer’s fitness to practice.

       SCR 20:1.15(b) provides:
      (b) Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person in writing. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render a full accounting regarding such property.

       SCR 20:8.4(c) provides:
      It is professional misconduct for a lawyer to:
      (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

       SCR 20:1.4(a) provides:

        (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

       SCR 20:1.4(b) provides:
      (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

       Former SCR 21.03(4) provided:
      (4) Every attorney shall cooperate with the board and the administrator in the investigation, prosecution and disposition of grievances and complaints filed with or by the board or administrator.

       Former SCR 22.07(2) provided:
      (2) During the course of an investigation, the administrator or a committee may notify the respondent of the subject being investigated. The respondent shall fully and fairly disclose all facts and circumstances pertaining to the alleged misconduct or medical incapacity within 20 days of being served by ordinary mail a request for response to a grievance. The administrator in his or her discretion may allow additional time to respond. Failure to provide information or misrepresentation in a disclosure is misconduct. The administrator or committee may make a further investigation before making a recommendation to the board.


text:
    In the Matter of the Reinstatement of the License of Donald S. Eisenberg to Practice Law in Wisconsin.
    Supreme Court

      Nos. 82-1914-D, 89-0596-D.

      Filed December 7, 2000.

    2000 WI 125
    (Also reported in 619 N.W.2d 530.)
   PER CURIAM.

¶1. On May 18, 2000, the Board of Attorneys Professional Responsibility (Board) filed its report recommending that Donald S. Eisenberg's petition for reinstatement of his license to practice law in Wisconsin be granted upon the following conditions: (1) that Mr. Eisenberg pay interest of $4583 on the amount of a fee he was previously required to repay to a former client; (2) that he be barred from having signature authority on any trust account; (3) that he complete continuing legal education credits required for reinstatement; (4) that if he returns to the practice of law, his practice be restricted to a law firm setting; (5) that he file an annual report with the Board regarding his employment status and promptly notify the Board if he changes employment; and (6) that if he returns to the practice of law, all lawyers responsible for the trust account at the firm at which he is employed be required to execute affidavits certifying that Mr. Eisenberg will exercise no management or control over the law firm's trust account.

¶ 2. The Board's recommendation for reinstatement followed its review of the report filed by a subcommittee of the District 9 Professional Responsibility Committee (DPRC), which after a reinstatement hearing, issued its report recommending reinstatement of Mr. Eisenberg's license to practice law. In addition, the Board of Bar Examiners has recommended that Mr. Eisenberg's reinstatement petition be granted, having determined that he has satisfied the continuing legal education requirements for reinstatement.

¶ 3. We determine, based on the unconditional recommendation of the subcommittee of the DPRC, the conditional recommendation of the Board, and the recommendation of the Board of Bar Examiners, that Mr.. Eisenberg's license to practice law in this state be reinstated upon conditions identified above. This court informs Mr. Eisenberg that the practice of law in this state is a privilege, not a right; we expect and demand that he not deviate from these conditions. In the past, this court has, for good reasons, denied Mr. Eisenberg's numerous petitions for reinstatement. We now grant this, his seventh, petition for reinstatement warning him in the strongest terms possible that any future violation of the Rules of Professional Conduct or deviation from these conditions will not be countenanced.

¶ 4. Mr. Eisenberg's license to practice law was suspended in 1984 for six months as discipline for having represented two criminal defendants whose interests were adverse and for failing to protect the interest of one of those clients in a case in which that client's liberty was at stake.

¶ 5. Mr. Eisenberg's first two applications for reinstatement were denied: the first, on the ground that he had engaged in the practice of law while his license was suspended; and the second, because he had continued to practice law while his license was suspended and he had failed to fully describe all his business activities during the suspension. Thereafter, Mr. Eisenberg's third petition for reinstatement was withdrawn. His fourth petition was remanded to the Board for further consideration because of a pending 'investigation into his handling of trust account funds. That fourth petition became moot when the trust account investigation resulted in a disciplinary proceeding culminating in revocation of Mr. Eisenberg's license to practice law.

¶ 6. Mr. Eisenberg's fifth reinstatement petition — his first following license revocation — was denied on the ground that he had not made restitution to the client whose criminal case he handled while simultaneously representing another criminal defendant with conflicting interests and on the ground Mr. Eisenberg had made statements on a television program concerning his belief in the guilt of a criminal defendant he had represented.

¶ 7. Mr. Eisenberg's sixth reinstatement petition was denied because he had failed to make restitution to or settle claims of persons injured or harmed by his misconduct, because he had expressed willingness to comply with the continuing legal education requirements for reinstatement only if he were assured that, having met those requirements, his license would be reinstated, and because he intended to practice law in Wisconsin only occasionally but maintain a trust account on his own, rather than in association with another lawyer or law firm in this state.

¶ 8. Mr. Eisenberg currently resides in the City of Orlando, Orange County, Florida, where he owns a process serving business. He intends to remain in Florida and may take the Florida bar examination or practice law there on a pro hac vice basis. He would like to practice law in Wisconsin occasionally with his two sons, who are Madison attorneys, and be "of counsel" to their law firm.

¶ 9. After Mr. Eisenberg filed his seventh petition for reinstatement, the matter was referred to the DPRC for investigation; the DPRC referred the matter to a subcommittee for a public hearing and report. See SCR 22.28(5). During the public hearing on the reinstatement petition on September 1, 1999, the subcommittee focused its inquiry on restitution, Mr. Eisenberg's understanding and attitude toward the standards that are imposed upon members of the bar, and whether he could be safely recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence.

¶ 10. The restitution issue arose when Mr. Eisen-berg was hired in September of 1977 to defend a client on three criminal counts; he was paid an advance fee of $10,000 for that representation. However, Mr. Eisen-berg represented that client while he was also representing another client whose interests conflicted with the first client's. That conflict was the subject of the disciplinary proceeding against Mr. Eisenberg in 1984, but the issue of restitution of the $10,000 fee was not addressed in that proceeding.

¶ 11. Mr. Eisenberg's failure to make restitution of that $10,000 fee to the first client was one of the grounds upon which the Board made its adverse recommendation regarding Mr. Eisenberg's fourth reinstatement petition; this court, however, did not address that restitution issue at that time because the reinstatement proceeding had been rendered moot by the revocation of Mr. Eisenberg's license in 1989 for trust account violations.

¶ 12. This court denied Mr. Eisenberg's fifth petition for reinstatement in 1996, in part, because of his failure to repay the $10,000 fee to the first client or the client's family after that client died.

¶ 13. During the sixth reinstatement proceeding, Mr. Eisenberg paid the sum of $10,000 in restitution to the client's family; however, Mr. Eisenberg took the position that he would pay interest on that restitution only if this court ordered him to do so. This court concluded that in declining to pay any interest to the client's family on the $10,000 fee unless ordered to do so, Mr. Eisenberg failed to display a proper attitude toward the standards that are imposed on the members of the bar. SCR 22.28(4)(f).

¶ 14. Following the denial of his sixth petition for reinstatement, Mr. Eisenberg offered to pay interest in the amount of $5,000 to the family. The family, however, requested a payment of $8,000 in accumulated interest.

¶ 15. At the public hearing on this most recent petition for reinstatement, Mr. Eisenberg testified that he was sorry that he had hurt his client's family and that it had not been his intention to do so. Mr. Eisen-berg indicated a willingness to pay interest to the family at the statutory interest rate of 5%; however, there was uncertainty as to the correct starting date for the interest calculation. The DPRC subcommittee calculated that the sum of $4583 was due as interest to the family accruing from the' date this court stayed a prior reinstatement proceeding to the date when Mr. Eisenberg. had repaid the entire principal sum of $10,000.

¶ 16. Based on Mr. Eisenberg's testimony at the public hearing that he now understands the standards that are imposed on lawyers in this state and his acknowledgement that it has taken him a long time to conquer his pride, the DPRC subcommittee concluded that Mr. Eisenberg's attitude had significantly changed, that he now appears to be truly remorseful for his past actions and is willing to subject himself to the rules of professional conduct for attorneys adopted by this court.

¶ 17. The DPRC subcommittee recommended that Mr. Eisenberg's license be reinstated citing his effort to resolve the interest issue with the client's family; his candor regarding his behavior since his license revocation, his efforts to fulfil continuing legal education requirements, and his stated intention to have only a limited law practice and no signature authority over his sons' law firm trust account.

¶ 18. The Board, upon reviewing the DPRC subcommittee's report and recommendation, concluded that Mr. Eisenberg had satisfied the requirements of SCR 22.28(4) for reinstatement of his license to practice law in this state. The Board determined that Mr; Eisenberg had demonstrated by clear and convincing evidence that he has the moral character to practice law in this state subject to the conditions identified above. Unlike the DPRC subcommittee's recommendation to reinstate Mr. Eisenberg's license without conditions, the Board recommended that his petition for reinstatement of his license to practice law be granted subject to the above conditions. The Board also determined that Mr. Eisenberg has currently paid all costs of these pending proceedings.

¶ 19. This court now grants Attorney Eisenberg's petition to reinstate his license to practice law in this state reiterating all the conditions identified by the Board in its report. For purposes of emphasis, we again caution Attorney Eisenberg that his absolute compliance with those conditions and with all rules adopted by this court governing attorneys' professional responsibility is demanded and expected. Any deviation from the conditions or the rules will not be countenanced.

¶ 20. It Is Ordered that the petition for the reinstatement of the license of Donald S. Eisenberg to practice law in Wisconsin is granted upon the following conditions: (1) that he pay interest of $4583 on the amount of a fee he was previously required to repay to a former client; (2) that he be barred from having signature authority on any trust account; (3) that he complete continuing legal education credits required for reinstatement; (4) that if he returns to the practice of law, his practice be restricted to a law firm setting; (5) that he file an annual report with the Board regarding his employment status and promptly notify the Board if he changes employment; and (6) that if he returns to the practice of law, all lawyers responsible for the trust account at the firm at which he is employed be required to execute affidavits certifying that Attorney Eisenberg will exercise no management or control over the law firm's trust account.

¶ 21. SHIRLEY S. ABRAHAMSON, C.J., did not participate.

       Effective October 1, 2000, Wisconsin's attorney disciplinary process underwent a substantial restructuring. The name of the body responsible for investigating and prosecuting cases involving attorney misconduct was changed to the Office of Lawyer Regulation and the Supreme Court Rules applicable to the lawyer regulation system were also revised. Since the conduct underlying this case arose prior to October 1, 2000, the body will be referred to as "the Board" and all references to Supreme Court Rules will be to those in effect prior to October 1, 2000.

       A violation of these conditions to practice law, whether it occurs in this state or elsewhere, will subject Mr. Eisenberg to the disciplinary authority of this state. See SCR 20:8.5(a).
      SCR 20:8.5(a) provides:
      (a) Disciplinary Authority. A lawyer admitted to the bar of this state is subject to the disciplinary authority of this state regardless of where the lawyer's conduct occurs. A lawyer allowed by a court of this state to appear and participate in a proceeding in that court is subject to the disciplinary authority of this state for conduct that occurs in connection with that proceeding. For the same conduct, a lawyer may be subject to the disciplinary authority of both this state and another jurisdiction where the lawyer is admitted to the bar or allowed to appear in a court proceeding.

         Disciplinary Proceedings Against Eisenberg, 117 Wis. 2d 332, 344 N.W.2d 169 (1984).

         Disciplinary Proceedings Against Eisenberg, 122 Wis. 2d 627, 363 N.W.2d 430 (1985).

         Disciplinary Proceedings Against Eisenberg, 126 Wis. 2d 435, 377 N.W.2d 160 (1985).

         Disciplinary Proceedings Against Eisenberg, 152 Wis. 2d 91, 447 N.W.2d 54 (1989).

         Reinstatement of Eisenberg, 206 Wis. 2d 264, 556 N.W.2d 749 (1996).

         Reinstatement of License of Eisenberg, 217 Wis. 2d 526, 577 NW.2d 626 (1998).

       Former SCR 22.28(5) provided:

        (5) The administrator shall investigate the eligibility of the petitioner for reinstatement and file a report and recommendation with the board. At least 30 days prior to the hearing on the petition before a professional responsibility committee, the administrator shall publish a notice in a newspaper of general circulation in any county in which the petitioner maintained an office prior to suspension or revocation and in the county of the petitioner's residence during the suspension or revocation and in an official publication of the state bar.
      The notice shall contain a brief statement of the nature and date of suspension or revocation, the matters required to be proved for reinstatement and the date on which a hearing on the petition will be held before a professional responsibility committee. In the case of a license suspension, the hearing shall not be held prior to the expiration of the period of suspension.

       Former SCR 22.28(4)(f> provided:
      (4) The petition for reinstatement shall show that:
      (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.

       Former SCR 22.28(4) provided:
      (4) The petition for reinstatement shall show that:
      (a) The petitioner desires to have the petitioner's license reinstated.
      (b) The petitioner has not practiced law during the period of suspension or revocation.

        (c) The petitioner has complied fully with the terms of the order and will continue to comply with them until the petitioner's license is reinstated.
      (d) The petitioner has maintained competence and learning in the law, including a list of specific activities pursued.
      (e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
      (f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
      (g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
      (h) The petitioner has fully complied with the requirements of SCR 22.26.
      (i) The petitioner indicates the proposed use of the license if reinstated.
      (j) The petitioner has fully described all business activities during the period of suspension or revocation.
      (k) The petitioner has made restitution or settled all claims from persons injured or harmed by petitioner's misconduct or, if the restitution is not complete, petitioner's explanation of the failure or inability to do so.