Reinstatement Is Not a Silo: Wisconsin Supreme Court Imposes an Affirmative Duty to Disclose Concurrent Discipline and Confirms the Expansive Scope of SCR 22.305

Case: Office of Lawyer Regulation v. Steven D. Johnson, 2025 WI 45 (Wis. Oct. 10, 2025)

Introduction

In this attorney reinstatement decision, the Supreme Court of Wisconsin grants Attorney Steven D. Johnson’s petition to reinstate his law license following a six-month suspension imposed in 2023 (In re Disciplinary Proceedings Against Johnson, 2023 WI 73). The court’s opinion, however, does more than decide reinstatement: it clarifies that reinstatement proceedings are comprehensive and ongoing inquiries into a lawyer’s present fitness, requiring candid disclosure of contemporaneous disciplinary developments—even when the underlying conduct predates the suspension. The court also interprets the confidentiality rule (SCR 22.40) to permit disclosure of discipline once it becomes public and notes that parties may seek court authorization to share otherwise confidential information during a pending reinstatement proceeding.

The key controversy arose because, while the reinstatement petition was pending before the referee, Attorney Johnson and the Office of Lawyer Regulation (OLR) negotiated and obtained a consensual public reprimand for separate 2021 misconduct but failed to disclose it to the referee or the court. The Supreme Court discovered the reprimand on its own, remanded for a supplemental report, and ultimately reinstated Johnson—with conditions—but issued a clear admonition that future litigants must not treat reinstatement proceedings and parallel disciplinary matters as “siloed.”

Parties: The OLR appeared as Complainant-Respondent and did not oppose reinstatement. Attorney Johnson, Respondent-Appellant, sought reinstatement and defended the nondisclosure. Referee L. Michael Tobin recommended reinstatement in both an original and a supplemental report addressing the late-disclosed reprimand.

Summary of the Opinion

Reinstatement granted: The court agrees with the referee that Johnson met his burden under SCR 22.305 and SCR 22.29(4), demonstrating sufficient moral character and present professional fitness to return to practice, albeit “not without some hesitation” given his disciplinary history and the additional misconduct reflected in the 2024 consensual public reprimand.
Conditions imposed: As a condition of reinstatement, within 30 days Johnson must enter a written agreement with the OLR to repay outstanding costs from the prior suspension (approximately $30,000 of roughly $33,000) and the costs of this reinstatement proceeding ($6,393.05 as of September 11, 2025), on terms “commensurate with his ability to pay,” and provide financial information upon request.
New guidance/principle: The court emphasizes that reinstatement is a “far-ranging” and “comprehensive” assessment of moral character and fitness; the proceeding must take into account relevant past, present, and foreseeable future behavior. Accordingly, parties have an affirmative obligation to disclose concurrent disciplinary developments (including negotiated reprimands) to the referee and court. SCR 22.40 confidentiality does not bar disclosure once discipline is public, and parties may seek Supreme Court authorization to disclose confidential information pre-issuance.
Admonition: The court expressly cautions future litigants “not to follow the course charted” here; the nondisclosure was a shared failure by Johnson and the OLR. Although the court declines to weigh this heavily in the outcome, it clarifies the expectation going forward.

Detailed Analysis

1) Precedents and Authorities Cited

In re Disciplinary Proceedings Against Johnson, 2023 WI 73, 409 Wis. 2d 220, 996 N.W.2d 517: The prior decision imposed a six-month suspension and emphasized the “blatant” nature of Johnson’s misconduct and the value of a formal reinstatement process to “fully vet” his fitness. That framing set the stage for heightened scrutiny in this reinstatement proceeding.
In re Disciplinary Proceedings Against Mandelman, 2018 WI 56, ¶25, 381 Wis. 2d 628, 912 N.W.2d 395: Establishes that the reinstatement criteria require a “comprehensive assessment of the lawyer.” The court leans on this principle to reject arguments that focus narrowly on post-suspension conduct.
In re Disciplinary Proceedings Against Penn, 2002 WI 5, ¶8, 249 Wis. 2d 667, 638 N.W.2d 287: Affirms that reinstatement hearings are “far-ranging” and “not limited” to the petition checklist in SCR 22.29(4). The court uses this to underscore that concurrent or recently adjudicated misconduct—even if predating suspension—is relevant to current moral character and fitness.
In re Disciplinary Proceedings Against Compton, 2008 WI 3, 306 Wis. 2d 280, 744 N.W.2d 78: Demonstrates that improper billing of paralegal time as attorney time can warrant suspension. The court invokes Compton to show that Johnson’s 2021 billing misconduct was not borderline but plainly serious.
In re Disciplinary Proceedings Against Thompson, 2014 WI 25, ¶33, 353 Wis. 2d 556, 847 N.W.2d 793: Emphasizes the “critical” need to obtain court permission before disclosing client confidences to respond to an ineffective assistance claim. The court cites Thompson to condemn Johnson’s unilateral revelation of client information in the 2021 criminal matter.

The court also interprets several procedural and ethical rules that structure reinstatement and discipline:

SCR 22.305 (reinstatement criteria: moral character; no detriment to administration of justice/public interest; compliance with SCR 22.26 and suspension terms);
SCR 22.29(4) (information the petition “shall show,” effectively incorporated into the 22.305 analysis);
SCR 22.26 (obligations upon suspension, including affidavits and cessation of law practice);
SCR 22.30 (reinstatement procedures, including stipulations and referral to a referee);
SCR 22.33(3) (Supreme Court review when no appeal from the referee’s report);
SCR 22.09 (consensual public reprimand process);
SCR 22.40 (confidentiality: how and when OLR may disclose disciplinary information, and the Supreme Court’s authority to authorize disclosure);
SCR 22.24(1m) (assessment of costs of reinstatement proceedings).

2) The Court’s Legal Reasoning

The court’s reasoning proceeds in two related tracks: (a) clarifying process and disclosure obligations during reinstatement; and (b) applying the substantive reinstatement criteria to Johnson’s record.

a) Reinstatement is comprehensive; disclosure of concurrent discipline is expected

The court reiterates that reinstatement is not an exercise confined to post-suspension behavior or the petition’s checklist. Citing Mandelman and Penn, the court stresses that the referee must conduct a “full and unrestricted evaluation” of the petitioner’s past, present, and predicted future behavior insofar as it bears on moral character, the administration of justice, and public interest. Against that backdrop, the court finds “no valid reason” for withholding the fact and substance of Johnson’s November 4, 2024 consensual public reprimand—a formal resolution of 2021 misconduct—while reinstatement was pending.

The opinion then systematically rejects the parties’ justifications for nondisclosure:

“Only post-suspension conduct matters.” Incorrect. SCR 22.305(1)-(2) and Penn plainly contemplate that moral character and public interest assessments encompass conduct both before and after suspension; the record must give a comprehensive and current picture.
“The reprimand had not yet issued at the hearing.” Even if true on the hearing date (Oct. 18, 2024), the reprimand issued on Nov. 4, 2024—before post-hearing briefs and before the referee’s Nov. 21, 2024 report—leaving ample opportunity for disclosure.
“SCR 22.40 confidentiality barred disclosure.” Any confidentiality concerns evaporated upon issuance of the public reprimand. And even before issuance, SCR 22.40(2) empowers the Supreme Court to authorize release of confidential information; the parties could have sought such authorization but did not.

Having clarified the procedural expectations, the court remanded for a supplemental report that considered the reprimand. That subsequent report again recommended reinstatement, which the court ultimately accepted.

b) Substantive application: moral character, public interest, and fitness

The court candidly acknowledges that Johnson’s history imposes a “heavy burden.” The prior suspension involved “blatant” misconduct (including offensive personality, supervisory failures, lack of candor to a tribunal, and poor client communication). The 2024 public reprimand reflected additional serious 2021 misconduct: charging a client attorney rates for paralegal work, inadequate explanation of plea elements, and disclosure/use of confidential client information without authorization.

Yet, the court credits several mitigating developments, supported by uncontested referee findings:

Johnson recognized and addressed his tendency to blur attorney/paralegal work through updated manuals, processes for personal review of court documents, and a commitment to consult ethics counsel on billing;
He engaged in ongoing counseling to improve responses to stress and adverse situations;
He demonstrated insight and remorse, leading the referee to find a “present understanding of (and respect for) professional standards.”

The court also notes a shared failure by both Johnson and the OLR regarding nondisclosure. Although a lawyer with a history of candor issues should be “highly vigilant” about disclosure, the mutual nature of the mistake led the court not to weigh it heavily against reinstatement.

On the financial compliance front, the court conditions reinstatement on Johnson’s timely entry into a written repayment agreement for prior and current costs, tailored to his ability to pay—thus ensuring ongoing compliance with SCR 22.26 and the prior suspension order.

3) The Opinion’s Practical Impact

a) New procedural clarity: disclosure duties during reinstatement

The opinion effectively establishes a practice rule for Wisconsin reinstatement proceedings:

Affirmative disclosure obligation: Petitioners and the OLR must disclose contemporaneous or newly issued discipline (e.g., consensual public reprimands) to the referee and court while reinstatement is pending.
Confidentiality is not a roadblock: After issuance of public discipline, SCR 22.40 no longer bars disclosure. Before issuance, the parties can (and should) seek Supreme Court authorization to share relevant confidential information implicating reinstatement.
Reinstatement inquiry is holistic: Conduct predating the suspension that is adjudicated post-suspension is relevant to moral character and public interest. Reinstatement is not limited to post-suspension conduct or to the SCR 22.29(4) checklist.

b) Substantive ethics signals to the bar

Paralegal billing: Charging attorney rates for paralegal work is improper and can draw suspension (Compton). Billing transparency and proper staffing distinctions are imperative.
Attorney oversight: Direct attorney involvement is essential, especially with plea advisals and critical filings. Delegation to nonlawyers without adequate supervision risks violations of competence and communication duties.
Client confidentiality and IAC responses: Before revealing client confidences in response to an ineffective assistance claim, obtain court permission (Thompson). Unilateral disclosures violate SCR 20:1.6 and 1.9.

c) Cost conditions and progressive discipline

By conditioning reinstatement on repayment agreements for disciplinary and reinstatement costs “commensurate with ability to pay,” the court illustrates a flexible compliance model that protects the public while recognizing financial realities. The court also underscores the “progressive discipline” framework: should misconduct recur, more severe sanctions may follow.

Complex Concepts Simplified

Reinstatement (SCR 22.30, 22.305): After suspension, a lawyer must prove fitness to return by “clear, satisfactory, and convincing evidence.” The court evaluates moral character, impact on justice and public interest, and compliance with suspension terms.
“Clear, satisfactory, and convincing evidence”: A high evidentiary standard requiring the factfinder to be firmly convinced of the truth of the petitioner’s fitness and compliance—not as high as “beyond a reasonable doubt,” but significantly more than “more likely than not.”
Consensual public reprimand (SCR 22.09): A public disciplinary sanction negotiated between the attorney and OLR and approved by a referee; once issued, it becomes public and is relevant to a lawyer’s fitness.
Confidentiality (SCR 22.40): OLR investigations are confidential pre-resolution, but the Supreme Court can authorize disclosure, and once a public reprimand issues, the specific discipline is no longer confidential.
“Offensive personality” (SCR 20:8.4(g) and SCR 40.15): Wisconsin’s unique civility requirement that prohibits conduct showing offensive personality, often invoked when behavior evidences disrespect to parties, witnesses, or tribunals.
Paralegal vs. attorney work and billing: Nonlawyer work cannot be billed at attorney rates; the invoices should clearly identify who performed tasks, and attorney supervision must be adequate under SCR 20:5.3.
Progressive discipline: A disciplinary philosophy where repeated or escalated misconduct yields increasingly serious sanctions, reflecting the lawyer’s failure to reform.
“Commensurate with ability to pay” cost conditions: The court may condition reinstatement on a repayment plan adaptable to the lawyer’s financial circumstances, with an obligation to provide financial information to OLR upon request.

Conclusion

Office of Lawyer Regulation v. Johnson advances Wisconsin reinstatement law in two significant ways. First, it cements the understanding that reinstatement proceedings are comprehensive, dynamic assessments of present fitness under SCR 22.305: relevant conduct is not confined to the post-suspension period or to the petition’s checklist, and referees must consider concurrent or recently adjudicated discipline. Second, it articulates a practical disclosure norm: petitioners and the OLR must proactively inform the referee and the court of disciplinary developments occurring during reinstatement, and SCR 22.40 does not stand in the way once discipline is public; pre-issuance, parties can seek Supreme Court authorization to disclose.

On the merits, the court, persuaded by uncontested evidence of remediation and insight, finds that Johnson has sufficiently reformed to satisfy the moral character and fitness requirements, while appropriately safeguarding the public by conditioning reinstatement on structured cost repayment. The opinion thus blends accountability with a pathway to redemption, and it offers clear procedural guidance to ensure that future reinstatement proceedings are fully informed, candid, and protective of the public interest.

Key Takeaways

Reinstatement is a holistic, far-ranging inquiry; all relevant conduct belongs in the record (Mandelman; Penn).
Parties have an affirmative duty to disclose concurrent disciplinary events during reinstatement; nondisclosure is unacceptable.
SCR 22.40 confidentiality does not bar post-issuance disclosure; pre-issuance disclosure can be authorized by the court.
Improper paralegal billing and unauthorized disclosure of client information remain serious violations (Compton; Thompson).
Reinstatement may be conditioned on cost repayment agreements tailored to ability to pay, with compliance monitoring.

Reinstatement Is Not a Silo: Wisconsin Supreme Court Imposes an Affirmative Duty to Disclose Concurrent Discipline and Confirms the Expansive Scope of SCR 22.305 (Office of Lawyer Regulation v. Steven D. Johnson, 2025 WI 45)