June 11, 2014 at 3:59 p.m.
Charges dismissed against lawyer who killed brother in drunk-driving case
Charges dismissed against lawyer who killed brother in drunk-driving case
On Friday, the Wisconsin Supreme Court in a nearly unanimous decision dismissed a disciplinary action against Daniel Johns, Jr., of Manitowish Waters, finding that he did not violate two rules of professional conduct governing attorneys.
The state Office of Lawyer Regulation, which oversees the practice of law in the state, filed a complaint against Johns in 2011 alleging that his conviction of drunken vehicular homicide reflected poorly on his character as a lawyer, and that he had failed to give written notice to OLR and the state Supreme Court of that conviction.
The incident underlying the case occurred in the early morning hours of December 28, 2002. According to court records and Lakeland Times archives, Johns, then 29 years old, was driving a pick-up truck on U.S. Highway 51 after leaving a family gathering. His brother, Justin, was a passenger.
At the intersection of U.S. Highway 51 and County Highway W, Johns lost control of the truck and skid off the roadway, striking a tree.
Justin was partially ejected from the truck and later died.
Neither were wearing seatbelts, and a blood draw indicated Johns had a blood-alcohol content of .257 percent.
Johns pleaded guilty to one count of homicide by use of a vehicle with a prohibited alcohol concentration.
Importantly, in the course of a plea hearing, uncertainty arose as to whether a felony conviction would result in automatic revocation of Johns' law license, and the judge presiding over the criminal case ordered attorneys to discuss the matter with OLR. They did so, speaking with a deputy director of the agency.
Lawyers at the hearing determined that such a conviction would not in itself automatically result in revocation of a law license.
Johns was sentenced to 120 days in jail and five years of probation. He was released from probation two-and-a-half years early, and began practicing law again.
OLR did not begin to take action against Johns until 2010, when the Milwaukee Journal Sentinel inquired about his case for a report on lawyer discipline. The agency filed its complaint the following year.
After the complaint was filed, the case was reviewed by a referee, a lawyer who investigates and recommends dispositions of disciplinary actions.
The referee determined that Johns did not commit professional misconduct because of his conviction, and recommended dismissal of that allegation.
"The evidence in this case clearly shows that the crime committed by (Johns) was a once in a lifetime aberration in his otherwise fine behavior," the referee wrote in his review of the case. "Except for this one specific and tragic event, (Johns) has led an exemplary personal and professional life."
But the referee did conclude that Johns failed to give proper notice of the conviction, and consequently, recommended that he receive a private or public reprimand.
OLR appealed the referee's report and recommendation, and instead sought to suspend Johns' law license for 60 days under both charges.
The high court heard oral argument in April 2013.
On Friday, five of the seven justices on the court held that Johns did not violate either of the misconduct charges.
The court agreed with the referee that Johns' conviction did not reflect poorly on his character as a lawyer, noting that he has no disciplinary history and no other criminal record.
"No one disputes that the facts of this case are tragic: Attorney Johns drove drunk and killed his brother -- a senseless loss of life," the court wrote. "This court will resist the impulse, however, to assume that the unfortunate death of Attorney Johns' brother necessarily reflects upon Attorney Johns' fitness as a lawyer."
As to the allegation that Johns did not give sufficient notice of his conviction to OLR and the state Supreme Court, the court effectively acknowledged the violation but said it was "of the most technical variety."
"A completely literal enforcement . . . benefits no one and settles nothing," the court wrote.
Chief Justice Shirley Abrahamson filed a dissenting opinion, concluding that while the violations were proven, discipline should not be imposed.
Abrahamson wrote that while Johns gave verbal notice to OLR during his plea hearing, he failed to give the agency the kind of notice precisely required -- in writing - and wholly failed to notify the state Supreme Court.
Abrahamson believed that Johns' conduct did impinge on his character as a lawyer, but again, she said discipline would not be warranted. In making that decision, she noted that the prosecutor and judge in the criminal case had discretion to not prosecute or jail him, but they chose to do so.
Abrahamson also examined the case through the lens of drunk driving, writing that Johns' blood-alcohol level was "way over the legal limit,"
"This case has to be considered, however, in the context of the scourge of drunk driving in our society," Abrahamson wrote.
Justice Ann Walsh Bradley did not participate in the case.
Concerns about lawyer discipline
In her dissent, Abrahamson said Johns' case raises "important concerns about the present lawyer regulatory system."
She said the nearly 10-year lag between the incident and when OLR filed its complaint was troubling to the court. She also questioned "the wisdom of OLR's appeal."
Abrahamson cited similar issues with other cases, including one decision also issued on Friday in which the court suspended the law license of former Calumet County District Attorney Ken Kratz for four months. Kratz's case, Abrahamson wrote, "raised the issue of partisan politics and media publicity in discipline proceedings."
OLR levied six charges of professional misconduct against Kratz, who pleaded no contest. The agency alleged he had inappropriate communications with social workers and victims of domestic abuse. Kratz' disciplinary proceeding garnered significant attention due to its illicit nature and because he gained fame for prosecuting a high-profile murder case in 2007.
Coincidentally, Kratz and Johns have several links. In Johns' criminal case, Kratz was the special prosecutor and the judge was former Oneida County Circuit Judge Robert Kinney. Kinney served as referee in Kratz' disciplinary proceeding.
As of press time, Johns did not return a message seeking comment.
Jonathan Anderson may be reached at [email protected]
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