author: PER CURIAM.

text:
    In the Matter of Disciplinary Proceedings Against Scott E. Selmer, Attorney at Law: Office of Lawyer Regulation f/k/a Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Scott E. Selmer, Respondent-Appellant.
    Supreme Court

      No. 1998AP886-D.

      Decided June 24, 2005.

    2005 WI 91
    (Also reported in 698 N.W.2d 695.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee, Russell Hanson, that Scott E. Selmer's license to practice law in Wisconsin be reinstated. The Office of Lawyer Regulation (OLR) and the Board of Bar Examiners (BBE) have joined in that recommendation.

¶ 2. We adopt the referee's findings of fact and conclusions of law and agree that Scott E. Selmer's license to practice law should he reinstated, subject to his compliance with current continuing legal education (CLE) requirements. Attorney Selmer shall also be required to pay the costs of the reinstatement proceeding.

¶ 3. Selmer, a Minnesota attorney, was admitted to practice law in Wisconsin in 1978. In 1990, the OLR's predecessor, the Board of Attorneys Professional Responsibility (Board), privately reprimanded Selmer for failing to provide competent representation by filing papers that reflected a lack of knowledge of Wisconsin appellate procedure and tribunals, and for filing documents while administratively suspended for failure to comply with CLE requirements.

¶ 4. In 1995, Attorney Selmer received a public reprimand as reciprocal discipline for a reprimand imposed upon him by the Minnesota Supreme Court. In re Disciplinary Action Against Selmer, 529 N.W.2d 694 (Minn. 1995). Misconduct consisted of failing to promptly provide his client in a personal injury matter a full accounting of funds he received on her behalf, charging and suing that client to collect an unreasonable fee, abusing the discovery process in that action, failing to maintain proper trust account books and records and falsely certifying that he had done so, and commingling personal and client funds in his trust account. This court conditioned Attorney Selmer's continued practice of law on his furnishing the Board copies of his trust account records for a period of two years. See In re Disciplinary Proceedings Against Selmer, 195 Wis. 2d 687, 538 N.W.2d 252 (1995).

¶ 5. Attorney Selmer's current license suspension was also imposed as reciprocal discipline for misconduct that occurred in Minnesota. In re Disciplinary Action Against Selmer, 568 N.W.2d 702 (Minn. 1997). The Minnesota court concluded that Selmer had engaged in a pattern of frivolous and harassing conduct by filing counterclaims alleging racial discrimination in actions brought against him by personal creditors and by filing claims in state and federal courts alleging racial discrimination. See id. The Minnesota courts concluded that Selmer's claims of racial discrimination lacked merit, and concluded further that Selmer knowingly offered false and misleading evidence in response to discovery requests, failed to supplement incomplete and misleading responses to discovery requests, failed to comply or make reasonably diligent efforts to comply with legally proper discovery requests, made false statements of fact in attempts to advance his own interests, and engaged in dishonest conduct in those actions. Id. He was suspended for a period of twelve months for this misconduct. Id. By order dated November 30, 2001, the Minnesota court conditionally reinstated Selmer's license to practice law in Minnesota. In re Disciplinary Action Against Selmer, 636 N.W.2d 308 (Minn. 2001).

¶ 6. On May 13, 2003, Selmer filed this petition pursuant to SCR 22.29, seeking reinstatement of his license to practice law in Wisconsin. Various procedural delays ensued. On April 14, 2004, the OLR formally opposed the petition for reinstatement primarily on the basis of these delays, which included the provision of necessary documentation to the OLR.

¶ 7. On May 4, 2004, Referee Hanson conducted a hearing, which was continued and concluded on October 25, 2004. See SCR 22.30. Referee Hanson filed his report and recommendation on November 26, 2004. Neither party appealed. The matter was again delayed to permit Selmer to complete all necessary continuing educational requirements.

¶ 8. The referee concluded that since his reinstatement in Minnesota, Attorney Selmer's conduct has been "exemplary." The attorney who supervised him during the reinstatement process in Minnesota testified on his behalf at the reinstatement hearing, opining that he "will act in conformity [with the Rules of Professional Conduct]" and stating: "I think... he will be extremely careful about all of his dealings and that he will comport himself in an ethical way."

¶ 9. The referee found credible and persuasive the testimony from various character witnesses Selmer produced. The referee noted that Selmer had accounted for his time in Minnesota and that there was no evidence he has practiced law in Wisconsin since his suspension. He is in full compliance with the Minnesota CLE requirements and is now in compliance with the requirements imposed in Wisconsin.

¶ 10. Ultimately, the referee concluded:

The recommendations of others who entered their support for the respondent were impressive and persuasive and the respondent himself clearly highly desires the return of his Wisconsin license. I can find no failure on his part significant enough to recommend against his reinstatement and I, therefore, recommend it.

¶ 11. As noted, the OLR did not appeal the report and recommendation. It has filed a statement of costs incurred in connection with the reinstatement proceeding, in the amount of $9,053.34.

¶ 12. Following submission of this matter to the court further delay ensued as Selmer sought to provide the BBE with necessary documentation regarding compliance with CLE requirements. We have now been advised that this documentation has been provided and that the BBE recommends his reinstatement.

¶ 13. After review of the record we conclude that Selmer has established by clear, satisfactory, and convincing evidence that he has satisfied all the criteria for reinstatement. Accordingly, we adopt the referee's findings of fact and conclusions of law and we agree with the referee's recommendation that Mr. Selmer's license to practice law in Wisconsin be reinstated. We conclude further that he should be required to pay the costs of this reinstatement proceeding.

¶ 14. IT IS ORDERED that the petition for reinstatement of the license of Scott E. Selmer to practice law in Wisconsin is granted, effective the date of this order, subject to compliance with current continuing legal education requirements.

¶ 15. IT IS FURTHER ORDERED that within six months of the date of this order Scott E. Selmer pay to the OLR the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Scott E. Selmer to practice law in Wisconsin shall be suspended until further order of the court.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Disciplinary Proceedings Against Donald J. Harman, Attorney at Law. Office of Lawyer Regulation f/k/a Board of Attorneys Professional Responsibility, Complainant-Respondent, v. Donald J. Harman, Respondent-Appellant.
    Supreme Court

      No. 1999AP2862-D.

      Decided June 24, 2005.

    2005 WI 89
    (Also reported in 698 N.W.2d 697.)
   PER CURIAM.

¶ 1. We review the recommendation of the referee that Donald J. Harman's petition seeking the reinstatement of his license to practice law in this state be denied. Although the referee found that Harman's conduct since denial of his prior petition for reinstatement had been exemplary and above reproach, the referee nevertheless recommended against granting this petition for reinstatement because Harman had not complied with various orders requiring him to pay the costs of prior disciplinary and reinstatement proceedings.

¶ 2. Donald Harman has not appealed from the referee's report or that recommendation. Accordingly, our review proceeds pursuant to SCR 22.33(3). We adopt the referee's findings but conclude that Harman's petition for reinstatement should be granted upon conditions as described below. We also direct that the costs of these current reinstatement proceedings, totaling $2396.12, be paid by Harman.

¶ 3. Donald Harman's license to practice law in. this state was suspended for a period of six months effective August 1, 2001. In re Disciplinary Proceedings Against Harman, 2001 WT 71, 244 Wis. 2d 438, 628 N.W.2d 351. Harman was ordered to pay the costs of those disciplinary proceedings; if such costs were not paid within 60 days and absent a showing that Harman was unable to pay the costs within that time, this court directed that his license to practice law in this state would remain suspended until further order of this court. Prior to that 2001 suspension, Harman had been publicly reprimanded; at that time, he had also been ordered to pay the costs of those proceedings.

¶ 4. Harman's subsequent petition for reinstatement was denied. In re Disciplinary Proceedings Against Harman, 2003 WI 45, 261 Wis. 2d 322, 661 N.W.2d 403. Again, Harman was assessed and directed to pay the costs of that reinstatement proceeding; again, he was warned that if the costs were not paid within the time specified, and absent a showing to the court of his inability to pay the costs within that time, his license to practice law would remain suspended until further order of this court.

¶ 5. Harman thereafter filed this current — his second — petition for reinstatement. Pursuant to SCR 22.30, Attorney Russell L. Hanson was appointed as referee and a public hearing was held on this petition for reinstatement. The referee subsequently issued his report setting forth his findings which included specific findings that since July 6, 1999, Harman has paid nothing toward the accumulated costs assessed against him in the prior proceedings. Thus, Harman currently has an outstanding balance of prior assessed costs in the amount of $18,781.76, exclusive of interest. As noted, Referee Hanson recommended that Harman's petition for reinstatement be denied because Harman had not complied with the terms of the prior orders since he had paid nothing toward these accumulated costs. The referee also noted that the financial statement filed by Harman in this reinstatement proceeding was inaccurate because it did not reflect a monthly rental of $325 that Harman admittedly has continued to pay for office space during his suspension. Referee Hanson in his report wrote:

At the hearing in this matter, the petitioner testified that he has maintained an office since his [suspension] and paid the sum of $325.00 per month. If the petitioner had paid that sum towards the costs of his prior discipline, he would by this time have paid $12,350.00. This is particularly significant since the petitioner gave no profit related reason for maintaining the office. It is therefore clear that the petitioner had the ability to pay a substantial portion of the costs he caused, but chose not to. At the hearing, the petitioner volunteered to pay $10.00 per month towards prior costs. That proposal is totally unreasonable.

¶ 6. The referee concluded his report by noting that Harman had submitted impressive recommendations from others in support of his petition for reinstatement; nevertheless, the referee said that although he would "like to be able to recommend his reinstatement," he could not do so because of Harman's "total failure to be concerned and responsible about the costs . . . ."

¶ 7. Upon receipt of the referee's report and recommendation, this court, on December 16, 2004, issued an order holding Harman's petition for reinstatement in abeyance; we informed Harman that to achieve reinstatement, he must "establish a realistic schedule agreed to by the Office of Lawyer Regulation (OLR) for the payment of accumulated costs in the initial disciplinary and the subsequent reinstatement proceedings." Harman was instructed to report back to this court indicating whether he and OLR had reached an agreement regarding a payment schedule. On February 22, 2005, an extension for additional time to negotiate with OLR was granted to Harman and the OLR was then directed to file a response to Harman's report.

¶ 8. Thereafter, Harman filed a letter/report dated March 17, 2005, stating that he had been unable to reach an agreement with OLR regarding repayment of costs, but would agree to a payment schedule of $100 per month, however, because of his financial circumstances, he could only guarantee a payment of $25 per month toward the prior costs.

¶ 9. The OLR responded and acknowledged that Harman's ability to make payments on the accumulated costs was limited; according to the OLR calculations, Harman currently owes nearly $19,500 on those prior costs, exclusive of interest. The OLR reported that it would agree to a payment plan of $100 per month and that as long as Harman complied with that payment schedule, the OLR would "be amenable to waiving post-judgment interest...." The OLR further suggested that if this court were to grant this petition and reinstate Harman's license to practice law, that reinstatement should be conditioned upon Harman continuing to pay $100 per month on the accumulated costs.

¶ 10. On April 7, 2005, Harman made a $100 payment to the OLR on the accumulated costs.

¶ 11. While we are concerned with Harman's past record and failure to make substantial payments on the accumulated costs that have been assessed against him, we also note the referee's specific finding that since his suspension, Harman has maintained competence in learning in the law by attendance at various educational activities, and that there is no evidence that Harman's conduct has been other than "exemplary and above reproach."

¶ 12. We determine that the referee's findings are not clearly erroneous and we adopt them. However, after our de novo review of the referee's conclusions of law, see In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶ 29, 248 Wis. 2d 662, 636 N.W.2d 718, we conclude that Harman has met his burden imposed by SCR 22.31(1) of "demonstrating, by clear, satisfactory, and convincing evidence" that his resumption of the practice of law would not be detrimental to the administration of justice or subversive of the public interest. Accordingly we grant Harman's petition for reinstatement. However, we condition that reinstatement on the specific requirement that he continue to pay $100 per month on the costs previously assessed against him in the prior disciplinary and reinstatement proceedings. We also direct that Harman be assessed the $2396.12 in costs in this current reinstatement proceeding. Those costs, like all the costs assessed against Harman in the prior proceedings, are reasonable and warranted under the circumstances.

¶ 13. IT IS ORDERED that Donald J. Harman's license to practice law in Wisconsin is reinstated upon the specific condition that he continue to make $100 per month payments to the Office of Lawyer Regulation as payment of the accumulated costs assessed against him in this and prior proceedings. If, during any month, Donald J. Harman fails to make the required payment to the Office of Lawyer Regulation by the 15th day of that month, the Office of Lawyer Regulation is directed to immediately inform this court of that fact and to request further appropriate action from this court.

¶ 14. IT IS FURTHER ORDERED that Donald J. Harman comply with the continuing legal education requirements as set forth in footnote 3 of this opinion.

       SCR 22.33(3) provides: Review, appeal. "(3) If no appeal is timely filed, the supreme court shall review the referee's report, order reinstatement, with or without conditions, deny reinstatement, or order the parties to file briefs in the matter."

       SCR 22.30 provides in pertinent part: Reinstatement procedure.
      (1) The clerk of the supreme court shall select a referee from the panel provided in SCR 21.08, based on availability and geographic proximity to the petitioner's place of residence, and the chief justice or, in his or her absence, the senior justice shall appoint the referee to conduct a hearing on the petition for reinstatement....

       The Board of Bar Examiners (BBE) has submitted a statement dated May 31, 2005, extending until August 1, 2005, its previous recommendation in support of Harman's petition for the reinstatement of his license to practice law in this state. In this recommendation, the BBE explains that because Harman was admitted in an even numbered year (1960) he will be required to comply with the current continuing legal education (CLE) requirement by reporting an additional 30.0 hours EPR; or by electing the exemption available at SCR 31.04(2) on the CLE Form 1 that will be due for the 2005-2006 reporting period.


text:
    In the Matter of Disciplinary Proceedings Against Nikola P. Kostich, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Nikola P. Kostich, Respondent.
    Supreme Court

      No. 2003AP2950-D.

      Decided June 24, 2005.

    2005 WI 90
    (Also reported in 700 N.W.2d 763.)
   PER CURIAM.

¶ 1. We review, pursuant to SCR 22.17(2), the findings of fact, conclusions of law, and recommendations of Referee Stanley Hack, concluding that Attorney Nikola Kostieh engaged in unprofessional conduct in the course of his practice of law in violation of the Rules of Professional Conduct. The referee recommended a public reprimand, restitution and payment of the costs of this proceeding. Neither party has appealed from the referee's report and recommendation.

¶ 2. We approve the findings, conclusions and recommendations as to the appropriate discipline for Attorney Kostich's misconduct.

¶ 3. Nikola Kostieh was admitted to practice law in Wisconsin on August 21, 1970. He has previously received a public reprimand for failing to timely file a federal tax return.

¶ 4. On October 31, 2003, the Office of Lawyer Regulation (OLR) filed a complaint against Kostieh alleging he had committed seven disciplinary violations in connection with two separate client matters. The matter proceeded to a hearing before Referee Hack in September 2004.

¶ 5. Many of the charges against Kostieh derive from a single criminal appeal involving Kostich's former client, PS. In March 1999, PS. was sentenced to 16 years in prison following entry of a guilty plea to attempted first-degree sexual assault. At RS.'s request, his parents retained Attorney Kostieh to represent him in postconviction proceedings. The client's mother paid Kostich an advance fee of $5000. At the time, Kostich's hourly rate was $200 per hour. There was no fee agreement between the parties and Kostich did not inform the client's mother that the fee was nonrefundable.

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

¶ 6. Attorney Kostich did file a timely notice of intent to pursue postconviction relief, obtained a copy of the case file from trial counsel, and had telephone conversations with the previous counsel and with the assistant district attorney. Although he does not keep billing records, the referee found that he also engaged in at least four hours of preliminary research and review of the case file. On May 14, 1999, he sent his client a copy of the notice of intent. However, that was the last correspondence he ever forwarded to this client.

¶ 7. In June 1999, Kostich met with ES. at the Dodge County Correctional Institution. He did not inform ES. at this meeting that he thought there were no grounds for an appeal.

¶ 8. Thereafter, Kostich failed to file various documents in the appeal. He failed to return ES.'s numerous calls inquiring about the status of the appeal. Between March 1999 and July 2001, ES.'s mother made repeated efforts to contact Kostich. Most were unsuccessful. On the few occasions she did see Kostich, he promised to work on the matter.

¶ 9. In June 2000, because of his inability to contact Kostich, ES. contacted the Frank J. Remington Center at the University of Wisconsin Law School. In June 2000, he executed a release asking Kostich to send his file to the Frank J. Remington Center. Kostich failed to do so and failed to respond to telephone calls from Kurt Klomberg at the Frank J. Remington Center. In June 2002, the director of the Remington Center forwarded correspondence to Kostich seeking release of the file to which Kostich failed to respond. After ignoring several further requests, Kostich finally released ES.'s file on August 9, 2002.

¶ 10. ES. filed an initial grievance against Kostich and Kostich promised to act in the matter. He cited difficulties contacting previous counsel and difficulties obtaining transcripts as the cause for his delay. However, Kostich took no further action and a second grievance was filed on July 23, 2001.

¶ 11. Subsequently, Kostich sent several letters to the OLR, stating he was prepared to act on ES.'s behalf. On November 21, 2001, he sent a letter stating that he found no grounds for appeal. He claimed he had been waiting for decisions on relevant case law, but the referee later found that the issue in question had been decided in 1996. In addition, the referee found that Kostich failed to respond promptly or fully to a number of further inquiries from the OLR, and from the OLR district committee.

¶ 12. The remaining charges against Attorney Kostich derive from allegations that he committed misconduct in his failure to respond to OLR questions regarding a grievance filed against him by another former client, J.H. Basically, the referee found that Kostich failed to respond to questions regarding the grievance and significantly delayed the investigation. Kostich's participation in the ensuing disciplinary proceeding was minimal.

¶ 13. Ultimately, the referee found that by failing to determine if ES. had grounds for an appeal for over 30 months after he was retained to do so, Kostich failed to act with reasonable diligence and promptness in representing a client, in violation of SCR 20:1.3 (Count 1).

¶ 14. The referee found further that by failing to respond to ES.'s letters or telephone calls, Kostich failed to keep his client reasonably informed about the status of a matter or to promptly comply with reasonable requests for information, in violation of SCR 20:1.4(a) (Count 2).

¶ 15. In addition, by failing to inform ES. that he had no legal grounds for an appeal prior to the expiration of statutory deadlines, the referee found that Kostich failed to explain a matter to the extent reasonably necessary to permit ES. to make an informed decision regarding representation, in violation of SCR 20:1.4(b) (Count 3).

¶ 16. The referee also concluded that by not performing a sufficient amount of work on ES.'s appellate issues to earn the full $5000 fee, and by not refunding any part of the fee after determining that ES. did not have legal grounds for an appeal, Kostich failed, upon termination of representation to take steps reasonably practicable to protect a client's interests, such as refunding any advance payment of fees that have not been earned in violation of SCR 20:1.16(d) (Count 4).

¶ 17. The referee found further that by failing to timely forward the ES. file to the Frank J. Remington Center despite numerous requests, Kostich failed, upon termination of representation, to take steps reasonably practicable to protect a client's interests, such as surrendering papers to which the client is entitled, in violation of SCR 20:1.16(d) (Count 5).

¶ 18. Finally, the referee found that by failing to timely and/or fully respond to OLR's correspondence and questions, as well as those of the district committee investigator, Kostich willfully failed, during the course of an investigation, to provide relevant information, answer questions fully, or furnish documents, regardless of the merits, thus violating two counts of SCR 22.03(6), both in regard to the ES. matter and the J.H. matter (Counts 6 and 7).

¶ 19. Turning to the question of the appropriate discipline, the referee observed that the ES. matter involved "serious neglect." Although the referee acknowledged that Kostich was busy during the time of the grievance investigation, traveling to the former Yugoslavia to participate in the International Criminal Tribunal, and was hindered by the breakup of his law firm, the referee noted that these events did not excuse Kostich's misconduct. The referee noted further that it was "very troubling" that Kostich made various claims to excuse his misconduct that were not substantiated. The referee ultimately concluded that a public reprimand was appropriate, together with an order requiring Kostich to pay restitution to ES.'s mother in the amount of $3200 in unearned legal fees and recommended that Attorney Kostich pay the costs of the proceeding.

¶ 20. This court adopts a referee's findings of fact unless they are clearly erroneous. In re Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 974, 498 N.W.2d 380 (1993). The referee's conclusions of law are reviewed de novo. In re Disciplinary Proceedings Against Norlin, 104 Wis. 2d 117, 122, 310 N.W.2d 789 (1981).

¶ 21. Here, we adopt the referee's findings of fact and conclusions of law and agree that a public reprimand is appropriate discipline for the misconduct committed by Attorney Kostich in these two client matters. We agree, further, that it is appropriate to direct Attorney Kostich to pay restitution to ES.'s mother in the amount of $3200, representing unearned legal fees, and that he should be required to pay the costs of this disciplinary proceeding, which are $9,064.70 as of November 24, 2004.

¶ 22. IT IS ORDERED that Nikola Kostich is publicly reprimanded for professional misconduct.

¶ 23. IT IS FURTHER ORDERED that within 60 days of the date of this order, Attorney Nikola Kostich make restitution to his former client's mother in the amount of $3200, plus post-judgment interest, provided that if the restitution is not made within the time specified and absent a showing to this court of his inability to make the restitution within that time, the license of Nikola Kostich to practice law in Wisconsin shall be suspended until further order of the court.

¶ 24. IT IS FURTHER ORDERED that within 60 days of the date of this order Nikola Kostich pay to the Office of Lawyer Regulation all the costs of this proceeding provided that if such costs are not paid within the time specified and absent a showing to this court of his inability to pay the costs within that time, the license of Nikola Kostich to practice law in Wisconsin shall be suspended until further order of the court.

¶ 25. DAVID T. PROSSER and LOUIS B. BUTLER, JR., J.J. did not participate.

       SCR 22.17(2) provides: Review; appeal.

       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: Communication, "(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: Communication, "(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

       SCR 20:1.16(d) provides: Declining or terminating representation.
      (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.

       SCR 22.03(6) provides: Investigation. "(6) In the course of the investigation, the respondent's wilful failure to provide relevant information, to answer questions fully, or to furnish documents and the respondent's misrepresentation in a disclosure are misconduct, regardless of the merits of the matters asserted in the grievance."


text:
    In the Matter of Disciplinary Proceedings Against Mark E. Robinson, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Mark E. Robinson, Respondent.
    Supreme Court

      No. 2004AP1238-D.

      Decided June 24, 2005.

    2005 WI 88
    (Also reported in 700 N.W.2d 757.)
   PER CURIAM.

¶ 1. We review the stipulation filed by Attorney Mark E. Robinson and the Office of Lawyer Regulation (OLR) concerning Attorney Robinson's professional misconduct in his handling of legal matters for a number of clients. The stipulation was submitted to Referee David R. Friedman. The referee reviewed the stipulation and issued a report recommending the level of discipline to which the parties stipulated, a six-month suspension of Attorney Robinson's license to practice law in Wisconsin. In addition, the referee recommended that Attorney Robinson be ordered to pay the costs of the disciplinary proceeding, which are $4,716.62 as of April 27, 2005.

¶ 2. We conclude that the referee's findings of fact are supported by satisfactory and convincing evidence. We also agree with the referee's conclusions of law that Attorney Robinson engaged in professional misconduct and farther agree that the seriousness of the misconduct warrants a six-month suspension of Attorney Robinson's license to practice law in Wisconsin.

¶ 3. Attorney Robinson was admitted to practice law in Wisconsin in 1991. He practices law in Janesville with the firm of Roethe, Krohn, Pope, McCarthy & Haas, LLP The OLR filed a complaint in May 2004, alleging that Attorney Robinson engaged in multiple counts of misconduct with respect to his handling of various client matters. All of the misconduct involved real estate transactions. The complaint alleged that in June of 2000, M.R. signed a real estate listing contract for the sale of property she owned in Janesville which she operated as a day care facility. M.R. added a restriction to the real estate listing contract prohibiting the sale of the property to any teachers who had formerly been associated with the day care center. On July 6, 2000, Attorney Robinson drafted a residential offer to purchase the property on behalf of his client, A.B., a developer. Attorney Robinson informed the real estate broker representing M.R. that his client was trying to find a residence for a carpenter who would assist him with some rental properties.

¶ 4. On July 12, 2000, Attorney Robinson, acting as agent for A.B., drafted a second offer to purchase M.R.'s property. Before accepting the offer, M.R. asked her broker to inquire of Attorney Robinson as to the identity of the buyer and whether the buyer was in any way associated with the day care facility. Attorney Robinson told the broker that his client was purchasing the property for an employee and intended to resell the property to the employee on a land contract. In reliance on those statements, M.R. accepted the offer to purchase.

¶ 5. Attorney Robinson subsequently became aware that A.B. was no longer interested in buying the property. Attorney Robinson then contacted three teachers who had formerly been associated with the day care center about the possibility of them operating a day care business on the property. In late July 2000, Attorney Robinson agreed with A.B. that Attorney Robinson would acquire the property from A.B. Attorney Robinson and the former day care facility teachers agreed that the teachers would buy the property on or about September 1, 2000. Attorney Robinson began arranging financing for the purchase of the property in his own name and advised his banker that he intended to lease the property for use as a preschool.

¶ 6. A.B. deeded the property to Attorney Robinson and sent the deed to Attorney Robinson by overnight mail. Attorney Robinson's legal assistant, acting on Attorney Robinson's instructions, notarized A.B.'s signature even though A.B. was not personally present. Prior to the closing of the property, M.R.'s real estate broker, on at least one occasion, advised Attorney Robinson that M.R. did not want to sell the property to anyone who had been formerly associated with her day care center. The sale of the property closed in late July 2000. At the closing M.R. questioned Attorney Robinson about the identity of the purchaser. Attorney Robinson failed to disclose that he would be purchasing the property from A.B. and selling it to three teachers formerly employed by M.R. at her day care facility.

¶ 7. Attorney Robinson formed JAC, LLC, a limited liability company, whose members were the three teachers formerly employed by M.R.'s day care facility. Attorney Robinson became the attorney for the LLC and its members. He entered into a land contract with JAC, LLC, conveying the property to the teachers. The teachers sent out solicitations for a new day care center to be operated on the property. If M.R. had known that Attorney Robinson intended to convey the property to three former employees she could have refused to close the sale. Attorney Robinson's concealment of the identity of the ultimate owners of the property was intended to, and in fact did, deceive M.R.

¶ 8. The OLR's complaint alleged, and the referee agreed, that by instructing his legal assistant to notarize a signature indicating that the signer of the deed was present when in fact he was not, Attorney Robinson violated SCR 20:5.3(c)(l), which would also be a violation of SCR 20:8.4(c), if done by Attorney Robinson himself. The complaint further alleged, and the referee agreed, that by intentionally misrepresenting to M.R. and others the identity of the buyer of M.R.'s property, Attorney Robinson violated SCR 20:8.4(c). The complaint also alleged that by failing to obtain written conflict waivers during his representation of multiple parties who were participants in the same real estate transaction, in which Attorney Robinson also had a personal interest, Attorney Robinson violated SCR 20:1.7(b).

¶ 9. The OLR's complaint also alleged that on November 20, 2001, Attorney Robinson sent a letter to occupants of a building located on Mt. Zion Avenue in Janesville advising the occupants that the previous owner of the building, M.K., no longer owned the building and that the building was owned by Cajun Properties, an enterprise controlled by Attorney Robinson. On November 21, 2001, Attorney Robinson sent a letter to M.K. advising him that M.K. was in default on his agreement regarding the purchase of the property and that the agreement had been assigned to Attorney Robinson's interest. That same day Attorney Larry Barton sent a letter to Attorney Robinson advising that Attorney Barton represented M.K. and that all future communications about M.K's real estate should be directed to Attorney Barton. Thereafter, on several occasions while Attorney Barton was still representing M.K., Attorney Robinson attempted to contact M.K. directly and through a third party. The OLR's complaint alleged, and the referee agreed, that by attempting to contact M.K. directly and through a third party, despite M.K's counsel directing Attorney Robinson to have no further contact with M.K., Attorney Robinson violated SCR 20:8.4(a) by attempting to violate SCR 20:4.2.

¶ 10. The OLR's complaint further alleged that Attorney Robinson was introduced to G.W. through A.B., the developer involved in the purchase of the day care facility. After GW told A.B. that he wanted to refinance his home, A.B. suggested that G.W. set up a limited liability corporation to be used to refinance GW's home and later to purchase some rental properties. During September 2000, Attorney Robinson drafted documents to establish a legal entity entitled GW Properties, LLC, with G.W as the sole member and Attorney Robinson as the registered agent. In drafting the documents, Attorney Robinson acted as attorney for G.W After Attorney Robinson prepared the documents creating GW Properties, LLC, G.W and the LLC purchased two properties through Attorney Robinson and A.B. via land contracts. At the time of the purchase, Attorney Robinson did not give G.W. any actual written, signed land contracts.

¶ 11. Attorney Robinson had previously created a series of limited liability companies which he used on his own behalf and/or on behalf of others in acquiring various properties. Some of the companies he created were Caveland, LLC, Peregrine Cliff, LLC, Northeast Partners, LLC, and Cajun Properties, LLC. The various LLCs made offers to purchase five parcels of real estate. The offers for all five parcels were signed in ways that may have made them unenforceable by the sellers. All offers to purchase were drafted by Attorney Robinson.

¶ 12. Sometime in November 2000, Attorney Robinson called G.W and told him the land contracts were ready for the two properties G.W. had purchased earlier and that G.W. should come to Attorney Robinson's office to sign them. In late November 2000, G.W. signed documents at Attorney Robinson's office relating to the two real estate purchases. Although the land contracts were signed by GW., they were never signed by the seller and they were never recorded.

¶ 13. While in Attorney Robinson's office signing the land contracts, G.W. also signed a warranty deed transferring all five properties on which the various LLCs had made offers from GW Properties, LLC, to Cajun Properties. Attorney Robinson did not reveal to or discuss with GW the fact that G.W. was signing the five-parcel deed or that G.W. was involved in any transaction concerning the five parcels. At the time GW signed the deed, GW Properties, LLC, did not have title to any of the five properties that the deed purportedly conveyed. On December 1, 2000, the five parcels were conveyed to GW Properties, LLC, at a closing in Janesville. G.W. was unaware of any closing involving GW Properties, LLC, and did not attend the closing. Attorney Robinson never notified G.W. that a closing would take place.

¶ 14. At the closing, Attorney Robinson signed the transfer tax return and buyer's closing statement for the purchase of the five parcels, representing that he was the agent of GW Properties, LLC, for that purpose. Attorney Robinson's status as registered agent did not authorize him to act as the agent of GW Properties, LLC, in closing the transactions, and GW Properties, LLC, did not authorize Attorney Robinson to act as its agent for those purchases.

¶ 15. On the same day Attorney Robinson closed on the five parcels conveyed to GW Properties, LLC, Attorney Robinson had Cajun Properties acquire the five parcels from GW Properties, LLC, using the warranty deed previously executed by G.W. Neither G.W. nor any representative of GW Properties, LLC, Peregrine Cliff, LLC, or Northeast Partners, LLC, was consulted about the multiple representation by Attorney Robinson and none of them consented in writing to the multiple representation.

¶ 16. At the time of the various transactions, G.W was married to T.D. On the application for a taxpayer identification number for GW Properties, LLC, Attorney Robinson used T.D.'s social security number without her authorization or consent and without having established an attorney-client relationship with T.D. Attorney Robinson also wrote a letter to Toyota Motor Corporation in which he asserted he was T.D.'s attorney. Attorney Robinson never obtained T.D.'s authorization or consent to act on her behalf.

¶ 17. The OLR's complaint alleged, and the referee agreed, that by representing to G.W. that he had legally purchased rental property, when in fact the properties were purchased on incomplete and unrecordable land contracts, and by transferring properties to or through GW Properties, LLC, without G.W's knowledge or consent, Attorney Robinson violated SCR 20:8.4(c). The complaint also alleged, and the referee agreed, that by using T.D.'s social security number to obtain a taxpayer identification number for GW Properties, LLC, without T.D.'s permission and without ever establishing an attorney-client relationship with her and by contacting Toyota Motor Corporation purporting to represent T.D. when in fact he did not, Attorney Robinson violated SCR 20:8.4(c).

¶ 18. The complaint also alleged that in November 1999, Attorney Robinson organized Peregrine Cliff, LLC, with the Wisconsin Department of Financial Institutions and designated himself as its registered agent. A.B., the developer, was the sole member of Peregrine. In September 2000, D.VB. established an attorney-client relationship with Attorney Robinson for assistance in a residential real estate transaction with respect to a piece of property located on Caroline Street in Janesville. Attorney Robinson drafted and delivered to D.VB. a residential offer to purchase showing Peregrine Cliff, LLC, as the buyer.

¶ 19. The purported signature for Peregrine Cliff, LLC, on the offer to purchase may have created an ambiguity as to the validity of the contract between D.VB. and any other party. Attorney Robinson intended that D.VB. rely on the offer to purchase as a binding contract for the sale of real estate. D.VB. and his wife accepted the offer from Peregrine Cliff, LLC, and took their home off the market. The sale of the property was scheduled to close on October 23, 2000, but was delayed and rescheduled several times. By letter dated March 28, 2001, Attorney Robinson informed D.VB. that Peregrine no longer wished to purchase the property. D.VB. believed he had a binding offer to purchase from Peregrine and that he had a cause of action against Peregrine for breach of contract for not proceeding with the closing. At no time did Attorney Robinson disclose to D.VB. that he was also the attorney for Peregrine.

¶ 20. The OLR's complaint alleged, and the referee agreed, that by simultaneously representing the conflicting interests of Peregrine Cliff, LLC, and D.VB., without prior consultation and without obtaining a written conflict waiver, Attorney Robinson violated SCR 20:1.7(a).

¶ 21. The parties' stipulation states that Attorney Robinson is entering pleas of "no contest" to the charges against him. As noted above, the referee issued a report incorporating the stipulation and adopting the recommended six-month suspension as well as the recommendation that Attorney Robinson pay the costs of the proceeding.

¶ 22. We adopt the findings of fact and conclusions of law to which the parties have stipulated, as also adopted by the referee. We determine that the seriousness of Attorney Robinson's misconduct warrants the suspension of his license to practice law for six months. We further agree that he should be required to pay the costs of the proceeding.

¶ 23. IT IS ORDERED that the license of Mark E. Robinson to practice law in Wisconsin is suspended for a period of six months, effective August 6, 2005.

¶ 24. IT IS FURTHER ORDERED that Attorney Robinson comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been suspended.

¶ 25. IT IS FURTHER ORDERED that within 60 days of the date of this order Attorney Mark E. Robinson shall 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 his inability to pay those costs within that time, the license of Attorney Mark E. Robinson to practice law in Wisconsin shall remain suspended until further order of the court.

       SCR 20:5.3(c)(1) provides: Responsibilities regarding nonlawyer assistants, "(c) A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved."

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

       SCR 20:1.7(b) provides: Conflict of interest: general rule. "(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests."

       SCR 20:8.4(a) provides: Misconduct. "It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another."

       SCR 20:4.2 provides: Communication with person represented by counsel. "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so."


author: DAVID T. PROSSER, J.

text:
    Tracy and Damian Osterhues, Art and Ellen Jacobs, and Andrew and Luella Peterson, Plaintiffs-Respondents-Cross-Appellants-Petitioners, v. Board of Adjustment for Washburn County, Defendant-Co-Appellant-Cross-Respondent, Washburn County, Defendant-Appellant-Cross-Respondent.
    Supreme Court

      No. 2003AP2194.

      Oral argument February 1, 2005.

      Decided June 28, 2005.

    2005 WI 92
    (Also reported in 698 N.W.2d 701.)

      For the plaintiffs-respondents-cross-appellants-petitioners there were briefs by Joseph R. Cincotta and Schweitzer & Cincotta LLP, Milwaukee, and oral argument by Joseph Cincotta.

    For the defendant-co-appellant-cross-respondent there was a brief by William G. Thiel and Weld, Riley, Prenn & Ricci, S.C., Eau Claire, and oral argument by William G. Thiel.

    For the defendant-appellant-cross-respondent there was a brief by R. Michael Waterman and Mudge, Porter, Lundeen & Seguin, S.C., Hudson, and oral argument by R. Michael Waterman.

   DAVID T. PROSSER, J.

¶ 1. This is a review of a published decision of the court of appeals, Osterhues v. Board of Adjustment for Washburn County, 2004 WI App 101, 273 Wis. 2d 718, 680 N.W.2d 823, that reversed a judgment and order of the circuit court for Washburn County, Robert H. Rasmussen, Judge. The court of appeals held that a county board of adjustment does not have the authority to conduct a de novo review of a county zoning committee's decision. We reverse.

¶ 2. When reviewing the decision to grant or deny a conditional use permit, a county board of adjustment has the authority to conduct a de novo review of the record and substitute its judgment for the county zoning committee's judgment. Moreover, under the applicable state statute, a board has authority to take new evidence. Wis. Stat. § 59.694 (2001-02). We reach this conclusion for the following reasons: First, the plain language of the statute gives the board "all of the powers of the officer from whom the appeal is taken" when "error is alleged." Second, the Wisconsin law is based on a model statute enacted by almost all states, and other states have consistently agreed that the board of adjustment has the power of de novo review. Third, it appears from prior appellate decisions that boards of adjustment in this state commonly exercise the power of de novo review, and take additional evidence, when reviewing grants and denials of conditional use permits.

I. FACTS AND PROCEDURAL POSTURE

¶ 3. The facts material to this appeal are undisputed. In 2001, the Washburn County Highway Department (the Department) was searching for a site upon which to construct a new gravel pit. The Department decided that Alvin Todd's 40-acre parcel in the Town of Beaver Brook would suit its purposes. However, Todd's parcel was zoned "Agricultural (A)." Under Washburn County's zoning ordinance, a gravel pit is a conditional use, not a permitted use, in that zone. Accordingly, the Department conditioned its purchase on its ability to obtain a conditional use permit from the Washburn County Zoning Committee (the Committee) authorizing the construction of the gravel pit.

¶ 4. On June 25, 2001, the Department filed its application for a conditional use permit with the Committee. On July 9, 2001, the Committee notified the surrounding property owners, including plaintiffs Damian and Tracy Osterhues, that it would consider the Department's application on July 24, 2001. The Committee also consulted with the host municipality, the Town of Beaver Brook, requesting Beaver Brook's recommendation on the permit application. On July 11 Beaver Brook recommended granting the permit subject to thirteen conditions. On July 24 County Highway Commissioner Mike Servi appeared before the Committee to request the permit. Tracy Osterhues and others appeared in opposition. The meeting minutes do not disclose the extent to which she and other citizens opposing the permit were allowed to present evidence, but Osterhues does not dispute that she had a full opportunity to argue her case before the Committee. Ultimately, the Committee voted to grant the permit, with only one vote opposed. On July 31 the Committee issued a written order memorializing the permit grant.

¶ 5. In August 2001 the Town of Beaver Brook asked the Committee to reconsider the permit grant because "the Town Board of Beaver Brook has changed [its] recommendation. . . The Committee agreed to do so, and scheduled the matter for rehearing at the September 25, 2001, Committee meeting. The Oster-hues and others again appeared in opposition. The Committee reapproved the permit grant with some additional conditions.

¶ 6. On November 19, 2001, the Osterhues and other surrounding property owners filed a notice of appeal of the Committee's decision with the Washburn County Board of Adjustment (the Board), alleging several errors including claims that the surrounding neighbors received insufficient notice of the project and that the Committee's action violated several Washburn County ordinances. The Board considered the matter at its meeting on January 9, 2002. Various surrounding property owners, including Tracy Osterhues, spoke in opposition to the project. The Town Chairman of Beaver Brook also spoke in opposition. In response, the Washburn County Corporation Counsel appeared and "addressed alleged errors by the committee."

¶ 7. One of the primary issues debated before the Board concerned the extent of the Board's review. Tracy Osterhues asked the Board to "hear this case all over again and decide for itself.... I am asking [you to] decide this case on your own merits." The Board's counsel advised the Board that it had the power to decide appeals only "where there is deemed to be an error. . .. [Y]our jurisdiction is merely to determine whether there is an error of fact or law below and then to issue an appropriate order." The Board's counsel further advised that even if the Board did find error, the appropriate remedy was not to decide the case itself, but to "return [the case] to the zoning committee with orders to them to hear the case or to follow your instructions." One Board member openly expressed the view that he would have voted differently if he had been part of the Zoning Committee, but based on the Board's counsel's advice, he felt constrained because he could not discern any "error" the Committee had made.

¶ 8. The Board voted to affirm the Committee's decision. On January 17, 2002, it issued detailed written findings of fact and conclusions of law. Among the Board's conclusions of law were the following:

11. The function of the Board of Adjustment when sitting on an appeal of a decision such as this is, in accord with § 300 of the Zoning Code[,] to correct any error in the decision on appeal. It is not to re-decide the matter or substitute its thoughts or opinions for those of the Committee or administrator who issued the decision brought up on appeal.
12. The Committee acted within its scope of authority under the Zoning Code and did not commit error.

¶ 9. On February 21,2002, the Osterhues and two neighboring couples filed a complaint in the circuit court for Washburn County seeking certiorari review pursuant to Wis. Stat. § 59.694(10). The Osterhues reiterated their argument that the Board had "complete power and full authority" to "fully review" the Committee's decision, but did not exercise that power based upon the allegedly faulty advice of its counsel.

¶ 10. The circuit court agreed with the plaintiffs and granted summary judgment in their favor on June 25, 2003, remanding the case to the Board to conduct a de novo review of the Committee's decision. The Board appealed, and the court of appeals reversed. We granted review.

II. ANALYSIS

A. Standard of Review

¶ 11. This case is before us on certiorari review. Our function is therefore limited to determining "(1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence." State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 14, 269 Wis. 2d 549, 676 N.W.2d 401 (citing Arndorfer v. Sauk County Bd. of Adjustment, 162 Wis. 2d 246, 253, 469 N.W.2d 831 (1991)).

¶ 12. Our review of the extent of the Board's power under the statutory scheme is de novo. Accord State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 22, 244 Wis. 2d 613, 628 N.W.2d 376. We conclude that the Board's action does not satisfy the second prong of the traditional certiorari test; by misconstruing its own authority to act on appeal, the Board proceeded on an incorrect theory of law.

B. General Principles

¶ 13. We begin by reviewing the sources of the Board's authority.

¶ 14. The legislature has given counties substantial discretion in setting up boards of adjustment:

The county board may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted under s. 59.69 may provide that the board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.

Wis. Stat. § 59.694(1).

¶ 15. After creating a board of adjustment and defining its power, "[t]he county board shall adopt rules for the conduct of the business of the board of adjustment ...." Wis. Stat. § 59.694(3).

¶ 16. The substantial discretion granted Wash-burn County in setting up its board means that we must examine the state statute, the County ordinances, and the Board's Bylaws to determine the extent of the Board's power in its review of the Committee's grant or denial of a conditional use permit.

¶ 17. The powers of a board of adjustment are set out in Wis. Stat. § 59.694(7). Specifically at issue here is § 59.694(7)(a), which gives a board the power to "hear and decide appeals where it is alleged there is error in an order, requirement, decision or determination made by an administrative official in the enforcement of s. 59.69 or of any ordinance enacted pursuant thereto." (Emphasis added.) In exercising that power, a board may "reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from, and may make the order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken." Wis. Stat. § 59.694(8) (emphasis added).

¶ 18. The particular "appeal" at issue is rooted in the community's zoning structure. Most municipal zoning ordinances provide for both "permitted uses" and "conditional uses" in each zone. Generally speaking, only conditional uses require a special permit from the zoning authority. Washburn County is no exception. Under its zoning ordinance, "[a]ny use listed as a Conditional Use in this Ordinance shall be permitted only upon ... issuance of a Conditional Use Permit by the Zoning Committee." Washburn County Zoning Ordinance, art. XX, § 200 (1988).

¶ 19. The parties agree that the land in question is zoned "Agricultural (A)." Permitted uses in that zone include general farming, one- and two-family dwellings, and stables, among other things. Washburn County Zoning Ordinance art. IX, § 91 (1988). Uses such as airports, cemeteries, and (important for our purposes) gravel pits are conditional uses in the Agricultural zone. Id., § 92.

¶ 20. If a Washburn County landowner proposes to construct a conditional use on his or her property, he or she must obtain the County's approval by following the procedures set out in the County Zoning Ordinance. Namely, the landowner must apply to the County Zoning Administrator and receive a permit issued by the Committee. Washburn County Zoning Ordinance art. XX, § 200 (1988). The Committee may request assorted information about the landowner's proposal, and must consider the proposal at a public hearing. Id., §§ 201, 204. If the Committee decides to issue the permit, it may attach any conditions (such as the conditions requested by the Town of Beaver Brook) that it "deem[s] necessary in furthering the purposes of this Ordinance." Id., § 203.

¶ 21. After the Committee issues its decision, "any person aggrieved" may take an appeal to the Board. Washburn County Zoning Ordinance art. XXX, § 301 (1988). There is no requirement that the "aggrieved person" first make an argument before the Committee. Upon such appeal, the Board takes jurisdiction and "shall hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement or administration of this Ordinance." Id., § 300(1). The Ordinance further provides that the Board "shall adopt such rules as it deems necessary for the conduct of business ...." Id., § 302.

¶ 22. In compliance with the Ordinance, the Board has adopted "Rules and By-laws of the Washburn County Board of Adjustment[ ]" (hereinafter "Bylaws"). The Bylaws provide that the Board assumes "all responsibilities, duties and powers as provided [in Wis. Stat. § 59.694] and by related statu[t]es." Bylaws, § 1(1). Further, the Board has "[t]he powers and duties [as] identified in Section[ ] 59.97(7) of the Wisconsin Statutes and in the Washburn County Zoning Ordinance." Id., § IV Finally, in exercising its power to hear appeals, the Board

may reverse or affirm, wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and shall have all the powers of the office [sic] from whom the Appeal is taken, and may issue, or direct the issuance, of a permit.

Id.

¶ 23. Apart from minor stylistic changes, this language was copied verbatim from Wis. Stat. § 59.694(8) ("Order on Appeal"). The similarities in language of the statute and the ordinance and Bylaws, coupled with the declaration in the Bylaws that the Board assumes "all responsibilities, duties and powers as provided [in Wis. Stat. § 59.694] and by related statu[t]es," make it apparent that the Bylaws are intended to allow the Board to wield all the power permitted under the state statutory scheme, specifically § 59.694(7) and (8).

C. Statutory Interpretation

¶ 24. As we have repeatedly held, statutory interpretation begins with the plain language of the statute. State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110. However, the plain meaning is seldom determined in a vacuum; statutory language should be "interpreted in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes ...." Id., ¶ 46.

¶ 25. The plain language of both the statute and the ordinance indicates that the Board may hear "appeals" from the Committee's decisions to grant or deny conditional use permits. Wis. Stat. § 59.694(7)(a); Washburn County Zoning Ordinance, art. XXX, § 300. The term "appeals" normally suggests appellate jurisdiction. The Board argues that it would be incongruous for this court to conclude that the Board, on appeal, may conduct a de novo review or take new testimony. The Board argues that the court should consider the dictionary definition of "appeal:" "A proceeding undertaken to have a decision reconsidered by bringing it to a higher authority; esp., the submission of a lower court's or agency's decision to a higher court for review and possible reversal." Black's Law Dictionary 94 (7th ed. 1999). The Board argues that this definition shows that it is the decision of the lower authority that should be the subject of the higher authority's consideration, not the substance of the matter. The Board then cites several non-zoning cases in which courts have construed the word "appeal."

¶ 26. It would be easy enough to collect cases interpreting and defining the word "appeal." But "appeal" is a broad term, and the. meaning of the word may be different in the administrative context than as normally used by courts. As one court interpreting an identical statute recognized, the meaning of the word "appeal" in any given context "cannot be decided by simply applying an abstract definition to that word." Messer v. Snohomish County Bd. of Adjustment, 578 P.2d 50, 56 (Wash. Ct. App. 1978). Rather, "[t]he scope and nature of an administrative appeal or review must be determined by the provisions of the statutes and ordinances which authorize them." Id. We agree.

¶ 27. The Board must acknowledge that Wis. Stat. § 59.694(7)(c) gives boards power "to authorize upon appeal in specific cases variances from the terms of the ordinance...." (Emphasis added.) In other words, a paragraph in the same subsection of the statute that defines the powers of boards of adjustment and authorizes the "appeal" from the Zoning Committee in this case, uses the word "appeal" in situations which virtually require the taking of evidence. The word "appeal" is used also in connection with variances in the Board's bylaws. Bylaws, § IV(2).

¶ 28. In addition, resort to the Board's dictionary definition of "appeal" is unnecessary because the Board's Bylaws expressly define the word as "A complaint of an injustice done or error committed in which both the facts and the law are reviewed. [The Board of Adjustment hears and decides] Appeals regarding interpretations of [the] County Zoning Ordinance." Bylaws, § XI(2) (emphasis added). This specialized definition of "appeal" differs from the sense in which courts normally use the word. Accordingly, we decline the Board's invitation to limit its power on grounds that the governing statute uses the word "appeal." To confirm the Bylaws' seemingly conclusive definition of "appeal," we consider the context of the statute by looking at the surrounding statutory scheme.

¶ 29. First, we note that the Board has the power to hear appeals "where it is alleged there is error . . .." in the decision below. Wis. Stat. § 59.694(7) (a) (emphasis added). The Board construes this to mean that it must find some error before it can perform a substantive review of the Committee’s action. At oral argument, the County and the Board disagreed as to the type of "error" the Board must find in order to exercise de novo review or receive additional evidence. The County asserted that the Board could proceed upon a finding of any error, whether that error was procedural, substantive, or equitable. The Board, on the other hand, argued that only a finding of procedural error would permit a substantive review.

¶ 30. The statute does not limit the Board to any prerequisite finding of error. All that is required for a board to proceed is that error be alleged. The error alleged may be procedural, substantive, or equitable because the statute, Wis. Stat. § 59.694(7)(a) and (8), does not limit the type of error that a board may review. Subsection (8) gives a board "all the powers of the officer from whom the appeal is taken." Because in this case the Committee has the power to take evidence and decide whether to grant a conditional use permit, the Board must have the same power, as the statute gives it "all the powers" the Committee has.

¶ 31. The Board initially acted on this understanding of its power. The statute requires that error be alleged by a "person aggrieved" by the Committee's decision. Wis. Stat. § 59.694(4). There is no dispute, for instance, that Tracy Osterhues was a "person aggrieved" by the Committee's decision or that she and others alleged errors by the Committee. Osterhues alleged error in her notice of appeal to the Board and she orally alleged error at the hearing before the Board. The hearing minutes specifically state that the Wash-burn County Corporation Counsel appeared representing the Committee and "addressed alleged errors by the committee." In short, the Board's own minutes acknowledged that the plaintiffs met the requirements necessary to trigger the Board's de novo review.

¶ 32. Next, we note that there is no requirement that the "person aggrieved" participated in any way in the Committee's hearing on the permit application. This is significant because it is conceivable — even likely —that the Board would be the only administrative body with the power to hear the evidence of a "person aggrieved" who did not appear before the Committee (perhaps because the person did not know that the applicant had requested a permit hearing). In that situation, due process would require the Board to allow such a person to present evidence. "The ultimate test to determine whether due process of law has been accorded a party to an administrative proceeding is the presence or absence of fair play," which includes the right to present "competent evidence." Bituminous Cas. Co. v. DILHR, 97 Wis. 2d 730, 734, 295 N.W.2d 183 (Ct. App. 1980) (quoting State ex rel. Richey v. Neenah Police & Fire Comm'n, 48 Wis.2d 575, 580, 180 N.W.2d 743 (1970)).

¶ 33. In reviewing the Committee's decision, the Board may decide to review the record of evidence presented to the Committee and may render an independent decision on that basis. It may also decide to take new testimony and evidence to supplement the record. If it does not do so, the Board may have to defend its action on an incomplete record in the event of certiorari review.

¶ 34. The plain-meaning interpretation that the Board may exercise de novo review and take additional evidence is confirmed by reference to other courts' interpretation of identical language, and by the past practices of boards of adjustment revealed in past Wisconsin appellate decisions.

D. The Standard State Zoning Enabling Act (SSZEA)

¶ 35. Wisconsin's zoning laws, including the statutes governing county hoards of adjustment, date to 1927. In that year, the legislature enacted, almost verbatim, the Standard State Zoning Enabling Act (SSZEA) that had been promulgated by the United States Department of Commerce under Herbert Hoover earlier. See ch. 408, Laws of 1927. The similarity between the revised SSZEA (1926) and Wisconsin's law (1927) is unmistakable. The 1926 SSZEA provided:

The board of adjustment shall have the following powers:
1. To hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made by an administrative official in the enforcement of this act or of any ordinance adopted pursuant thereto.
In exercising the above-mentioned powers such board may, in conformity with the provisions of this act, reverse or affirm, wholly or partly, or may modify the order, requirement, decision, or determination appealed from and may make such order, requirement, decision, or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken.

A Standard State Zoning Enabling Act 10-11 (U.S. Dep't of Commerce 1926).

¶ 36. The original Wisconsin statute corresponding to the quoted language is textually identical except that "section 59.97" was substituted for the first instance of "this act." Wis. Stat. § 59.99(7)(a), (8) (1927). To remove any possible doubt, a copy of the SSZEA, annotated with the aforementioned change, appears in the statute's drafting file. See Legislative Reference Bureau Drafting File for Assembly Bill 603, ch. 408, Laws of 1927. That our statute was based on the SSZEA is therefore beyond dispute. See also Klinger v. Oneida County, 149 Wis. 2d 838, 842 n.3, 440 N.W.2d 348 (1989) (noting that Wis. Stat. § 59.99(10) is modeled on the SSZEA).

¶ 37. When a Wisconsin statute adopts a model law, it is appropriate to reference the case law of other jurisdictions that have also enacted the same law. See, e.g., Knight v. Milwaukee County, 2002 WI 27, ¶ 28, 251 Wis. 2d 10, 640 N.W.2d 773; National Operating, L.P. v. Mutual Life Ins. Co., 2001 WI 87, ¶ 30, 244 Wis. 2d 839, 630 N.W.2d 116.

¶ 38. Because the statutory language at issue is taken from a model act that has been adopted in most jurisdictions, there is no paucity of case law deciding the issue now before this court. Courts in other jurisdictions, construing statutes effectively identical to Wisconsin's, have repeatedly concluded that a board of adjustment has broad power to conduct a de novo review and may take additional evidence. See also 4 Anderson's American Law of Zoning § 2205, at 14-15 (4th ed. 1997) (board has power to conduct a de novo review); 3 Rathkopfs The Law of Zoning and Planning § 57:9, at 57-27 (Ziegler rev. 2002) (board has power to "reverse or affirm, wholly or partly ... and make such order, requirement, decision, or determination as, in its opinion, ought to be made in the case.") (emphasis added). In exercising this power, the Board necessarily can — indeed, must — make factual determinations. See 3 Rathkopfs The Law of Zoning and Planning, § 57:11, at 57-31 (Ziegler rev. 2002).

E. Wisconsin Practice

¶ 39. Our holding that the Board has discretion to take evidence and perform a de novo review of the Committee's decision finds additional support in the past practice of similar boards in other counties, as evidenced in our case law.

¶ 40. For example, in State ex rel. Brookside Poultry Farms, Inc. v. Jefferson County Board of Adjustment, we noted that, on appeal from a county zoning committee, the Jefferson County Board of Adjustment "conducted the appeal as a contested case hearing and ordered the parties to present their cases as if the appeals were de novo proceedings." 131 Wis. 2d 101, 107, 388 N.W.2d 593 (1986). Similarly, in Board of Regents of the University of Wisconsin v. Dane County Board of Adjustment, the Dane County Board of Adjustment took extensive testimony and conducted a de novo hearing upon appeal of a zoning committee's grant of a conditional use permit. 2000 WI App 211, ¶¶ 4—5, 8, 238 Wis. 2d 810, 618 N.W.2d 537. In Wolff v. Town of Jamestown, the court of appeals observed that when the Town of Jamestown appealed the Grant County Planning and Zoning Committee's grant of a conditional use permit, the Grant County Board of Adjustment "ultimately denied the ... application [for conditional use permit]." 229 Wis. 2d 738, 742, 601 N.W.2d 301 (Ct. App. 1999). The Grant County Board of Adjustment did not remand the appeal to the Committee. In all three cases, it is plain that the Board of Adjustment exercised its power of de novo review without objection. At oral argument, the Board's counsel anecdotally confirmed that other boards of adjustment use similar practices.

¶ 41. Quite possibly, Wisconsin boards of adjustment believe they have these powers because widely circulated guidebooks governing Wisconsin board practice so state.

¶ 42. In 1960 the League of Wisconsin Municipalities published Zoning Boards of Appeal: A Manual on Their Powers and Duties with Suggested Rules of Procedure (1960). This manual plainly contemplates the Board hearing evidence, including allowing the appellant to examine the administrative official whose decision is appealed. Id. at 7-8. Significantly, "[t]he board is not bound by the decision of the building inspector or administrative officer on questions of fact." Id. at 9 (citing Brown v. Montgomery, 193 S.W.2d 23, 26-27 (Mo. 1946)). The League's guide interpreted identical language found in both Wis. Stat. § 62.23(7)(e)7 and Wis. Stat. § 59.694(7)(a), referencing a board's power "to hear and decide appeals where it is alleged that there is an error," to mean that the Board has the power "to correct mistakes made by the administrative official." Id. at 11. Similarly, the Land Use Education Center's Zoning Board Handbook for Zoning Boards of Adjustment/ Appeals (July 2001) anticipates that the Board will hear testimony and take other evidence. Id. at 12.

III. CONCLUSION

¶ 43. The Washburn County Board of Adjustment determined that it could not substantively disagree with the County Zoning Committee, and that it could do nothing unless it found procedural error. In adhering to these mistaken principles, the Board proceeded on the wrong theory of law. The Board has the authority to perform a substantive, de novo review of the Committee's decision, and may take additional evidence if necessary. We therefore reverse the decision of the court of appeals and remand this case to the circuit court, so that it may in turn remand the matter to the Washburn County Board of Adjustment for reconsideration in accord with the principles expressed in this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

       All subsequent references to the Wisconsin Statutes are to the 2001-02 edition unless otherwise indicated.

       Osterhues presented some evidence to the Board. Although the Board heard the evidence, it ultimately restricted its review to whether the Committee erred procedurally.

       The other named plaintiffs were Art and Ellen Jacobs and Andrew and Luella Peterson.

       The ordinance numbers cited herein correspond to the numbering system contained in copies of the County ordinances provided to the court by the parties. We note that Washburn County has since renumbered its ordinances into a comprehensive collection. For example, the zoning ordinance is now located in Washburn County's Land Development Code (chapter 38 of the new numbering system) at article IV As neither party objected to the ordinances filed with the court, we will continue to refer to the old numbering system for purposes of this opinion.

       The Board does not dispute that the Committee is an "administrative official" or that its action was taken "in the enforcement or administration of this Ordinance." Accordingly, the only issue we must decide is the extent of the Board's review.

       The Bylaws reference Wis. Stat. § 59.99, which was renumbered § 59.694 by 1995 Wis. Act 201, § 479. According to Act 201, the change was "nonsubstantive." Although it appears that the Board has not amended its Bylaws to take this change into account, we proceed with the understanding the Bylaws effectively refer to § 59.694, as § 59.99 no longer exists.

       The parties agree that the reference to § 59.97(7) is an obvious typographical error intended to refer to § 59.99(7) ("Powers of Board"), since renumbered § 59.694(7). See supra n.6.

       As examples, the Employee Trust Funds Board hears "appeals" from the Department of Employee Trust Funds' decisions. Wis. Stat. § 40.02(19); Wis. Admin. Code § ETF 11.02(3), (5) (Jan. 2004). Such an "appeal" is treated as a contested case in which both parties may conduct discovery and present evidence. Wis. Admin. Code §§ ETF 11.03(6), 11.05, 11.06 (Jan. 2004).
      Similarly, although in a different context, either party may "appeal" from a judgment in municipal court, and a new trial may be held in circuit court. Wis. Stat. § 800.14(1) and (4).

       Osterhues points out the circuity in the Board's argument: If the Board may not conduct a substantive review, how may it determine whether there is substantive error in the Committee's decision?

       The Standard State Zoning Enabling Act was extremely successful, having been "adopted at one point in all 50 states, and is still in effect (with various modifications) in 47 states." Homer Township v. Zimney, 490 N.W.2d 256, 258 (N.D. 1992) (quoting 1 Williams Am. Land Plan, § 18.01 (1988 rev.)).

        See, e.g., City and County of Denver v. Bd. of Adjustment for City and County of Denver, 55 P.3d 252, 256 (Colo. Ct. App. 2002) (Because the board has all the powers of the officer from whom the appeal is taken, ”[i]n effect, the board steps into the shoes of the zoning administrator because it is granted the power to do that which ought to have been done in the first place. The board's review therefore is de novo."); Brown v. Montgomery, et al., 193 S.W.2d 23, 27 (Mo. 1946) (language from the act authorizes the board to provide a de novo hearing, and the decision below did not bind the board on issues of fact); Arents v. Squires, 166 N.E.2d 848, 852-53 (N.Y. 1960) (The Board has "all the powers of the officer from whom the appeal is taken," and the nature of the board's power "is not changed by the particular board or officer that exercises it, but the power classifies itself according to its function."); Silver Griddle Co. v. City of Oklahoma City, 570 P.2d 619, 622 (Okla. 1977) ("[I]f the Board of Adjustment thinks that the Appellee should have been granted a permit, then it has the authority to modify the order and grant the permit."); Fleishon v. Zoning Bd. of Adjustment et al., 2 Pa. D.&C.2d 45, 47 (Pa. Com.Pl. 1954) (The board has the power to "consider the entire issue de novo" and "was not created to be a mere 'rubber stamp' for an administrative officer."); Clear Channel Outdoor v. City of Myrtle Beach, 602 S.E.2d 76, 79 (S.C. Ct. App. 2004) (board exercises "substantial power" with "[flew restrictions" and is authorized to apply the ordinance as dictated by the facts before it); Messer v. Snohomish County Bd. of Adjustment, 578 P.2d 50, 56 (Wash. Ct. App. 1978) (Board may grant a de novo hearing but is not required to do so).

        See supra n.9. Although the League's guide is written for boards of appeal, not boards of adjustment, the same statutory language from the SSZEA is at issue; the difference is not substantive. Further, the case cited for this proposition, Brown, involves a board of adjustment, not a board of appeal.