2015 WI 802015 WI 80

SUPREME COURT OF WISCONSIN

CASE NO.: 1997AP3862-D & 1996AP3390-D 

COMPLETE TITLE: In the Matter of Medical Incapacity Proceedings 

Against Nancy A. Schlieve, Attorney at Law. 

Board of Attorneys Professional Responsibility , 

n/k/a 

Office of Lawyer Regulation, 

 Complainant-Appellant-RespondentRespondent, 

 v. 

Nancy A. Schlieve, 

 Respondent-Respondent-PetitionerAppellant. 

 

MEDICAL INCAPACITY PROCEEDINGS AGAINST SCHLIEVE 

OPINION FILED: July 15, 2015 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: January 9, 2015 

SOURCE OF APPEAL: 

 COURT: 

 COUNTY: 

 JUDGE: 

 

JUSTICES: 

 CONCURRED: 

 DISSENTED: ABRAHAMSON, J., dissents. (Opinion Filed.) 

 NOT PARTICIPATING: 

 

ATTORNEYS: 

For the respondent-respondent-petitioner-appellant, there 

were briefs by Nancy Schlieve, Eau Claire, and oral argument by 

Nancy Schlieve. 

For the complainant-appellant-respondent-respondent, there 

was a brief by Wayne A. Arnold, Rice Lake, and oral argument by 

Wayne A. Arnold. 
2
80 WI 2015

notice 

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

Nos. 1997AP3862-D 

 1996AP3390-D 

 

STATE OF WISCONSIN : IN SUPREME COURT 

In the Matter of Medical Incapacity Proceedings 

Against Nancy A. Schlieve, Attorney at Law. 

Board of Attorneys Professional Responsibility, 

n/k/a Office of Lawyer Regulation, 

 Complainant-Appellant-RespondentRespondent, 

 v. 

Nancy A. Schlieve, 

 Respondent-Respondent-PetitionerAppellant. 

FILED 

JUL 15, 2015 

Diane M. Fremgen 

Clerk of Supreme Court 

ATTORNEY reinstatement proceeding. Reinstatement denied. 

¶1 PER CURIAM. Nancy A. Schlieve has appealed from a 

referee's report recommending the denial of Attorney Schlieve's 

petition for reinstatement of her license to practice law in 

Wisconsin. Attorney Schlieve argues that the medical incapacity 

which resulted in the suspension of her law license has been 

removed and that she is fit to resume the practice of law. 
Nos. 1997AP3862-D 

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2 

¶2 After careful consideration of the matter and after 

hearing oral argument, we conclude that Attorney Schlieve has 

failed to meet her burden under Supreme Court Rule 

(SCR) 22.36(6) to show by clear, satisfactory, and convincing 

evidence that she is currently fit to resume the practice of 

law. Accordingly, we deny her reinstatement petition. We also 

find it appropriate to impose the full amount of costs of this 

reinstatement proceeding, which are $20,367.49 as of January 29, 

2015. 

¶3 Attorney Schlieve was licensed to practice law in

Wisconsin in 1990. In 1997, this court imposed conditions on 

her license directed toward her rehabilitation from alcoholism. 

See In re Medical Incapacity Proceeding Against Schlieve, 

Case No. 96-3390-D, 212 Wis. 2d 693, 569 N.W.2d 593 (Table) 

(1997). In 1998, this court suspended Attorney Schlieve's 

license due to her medical incapacity of alcoholism. The 

suspension was imposed for an indefinite time. See In re 

Medical Incapacity Proceedings Against Schlieve, 221 Wis. 2d 

610, 585 N.W.2d 585 (1998). 

¶4 In 2006, Attorney Schlieve filed a petition seeking 

the reinstatement of her license to practice law. This court 

denied reinstatement on the grounds that Attorney Schlieve had 

failed to meet her burden of proving "fitness" as required by 

SCR 22.36(6). See In re Medical Incapacity Proceedings Against 

Schlieve, 2010 WI 22, 323 Wis. 2d 654, 780 N.W.2d 516. 
Nos. 1997AP3862-D 

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¶5 Attorney Schlieve filed a second petition for 

reinstatement on September 10, 2012. James G. Curtis, Jr. was 

appointed as referee on December 18, 2012. A hearing was held 

over the course of two days, with testimony completed on 

March 13, 2014. 

¶6 One of the witnesses who testified at the hearing was 

Linda Albert, who manages the Wisconsin Lawyers Assistance 

Program (WisLAP) which provides the systems and monitoring for 

attorneys. Ms. Albert testified that Attorney Schlieve had 

contacted WisLAP in the spring of 2013 inquiring about 

monitoring since she was applying for reinstatement of her 

license to practice law. Ms. Albert explained: 

Nancy came into the program and, unlike the majority 

of monitoring participants, has exhibited behaviors

that have required a lot of clarification of what is 

to be done within monitoring. 

. . . . 

So a difficult time following directions of the 

program, you know, having directions to make sure and 

report all prescription medication to us, and then 

discovering that she hasn't done that and having to

ask for that. You know, she has wanted to dictate the 

terms of her testing, you know, when testing will be 

and how it will be done and why we would need to do

hair testing. 

. . . . 

She had a positive screen for a mood-altering 

substance in her September of 2013 screen. And I 

asked her about it, and her answer was very vague and 

something about, you know, having gotten medications 

from different countries when she was traveling and

she didn't know if that could cause it. 
Nos. 1997AP3862-D 

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And so we have to take a lot of time trying to 

verify very objective data. And so, for example, with 

the positive screen, we even went to her doctor and

asked for a list of prescribed mediations. And when 

that came back, it did not include any medication -- 

any prescription for something with codeine in it for 

September of 2013; yet she had a positive screen for 

codeine. So it's been these types of things that have 

become particularly time-consuming and difficult with 

not following the directions and the questioning and 

not agreeing with. 

. . . . 

So, in essence, what I have said to Nancy is -- 

you know, sent her a letter to state, you know, we can 

follow her through her hearing today, but that she's 

no longer appropriate to be in the monitoring program. 

* * * * 

It's been a case of difficulty of getting 

information, problems following directions, causing

problems at the collection site, not giving access to 

medical providers when the contract requires it. So I 

don't anticipate that those things would change 

because we've tried hard to work with them and to 

redirect and to ask for what we need. . . . . 

We don't have the staff time. And I don't think 

that it's probably in the best interest to, you know, 

try to continue to work with that behavior versus just 

not have the relationship for either party. . . . . 

* * * * 

I would say that 99% of the people that have come into 

monitoring are able to follow the instructions and 

understand them and do things according to sequence

and provide the information requested. 

 And it's a pretty rare case when someone is not 

able to do that. 

¶7 Testimony was also received at the hearing from 

persons in the Eau Claire city attorney's office. Eau Claire 

City Attorney Stephen Nick testified that in his opinion 
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Attorney Schlieve had been dishonest, abused the legal system, 

lacked the ability to navigate the city and court procedures, 

and engaged in a pattern of intentional delay and avoidance with 

respect to various city citations issued against her relating to 

rental property. Assistant City Attorney Stephen Bohrer 

testified about the numerous problems he had encountered with 

Attorney Schlieve on various citation matters. He said she 

would send undated faxes with no return fax or phone number. 

Mr. Bohrer concluded that Attorney Schlieve was manipulating the 

dates on the faxes for purposes of causing delay or causing 

cases to become more complicated than they needed to be. Mr. 

Bohrer said Attorney Schlieve's professionalism was very poor 

and his inability to reach and communicate with her was very 

frustrating. 

¶8 The referee issued his report and recommendation on 

May 5, 2014. The referee said that in the 2010 decision denying 

her previous reinstatement petition, this court noted that under 

SCR 22.36(6), the petitioner has the burden of showing by clear, 

satisfactory, and convincing evidence that the medical 

incapacity has been removed and that the petitioner is fit to 

resume the practice of law, with or without conditions. The 

referee also noted that the term "fit," as used in SCR 22.36(6), 

with the phrase "to practice law," encompasses more than removal 

of a medical incapacity, and that the term "fit" is sufficiently 

broad to imply a state of preparedness to render competent legal 

services. 
Nos. 1997AP3862-D 

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¶9 The referee noted that Attorney Schlieve has not 

practiced law since 1998, and during that time she has not been 

employed outside the home. She has primarily spent her time 

caring for her son, who has medical issues. The referee noted 

that in addition to caring for her son, Attorney Schlieve has 

been active in her church, in dog rescue efforts, and in other 

community affairs. In recent times, she has been working with a 

friend to establish two startup businesses, one offering tea 

party services and one offering wedding planning services. 

¶10 The referee noted that Attorney Schlieve has earned a 

significant number of continuing legal education (CLE) credits 

and has attended a significant amount of coursework, all online. 

The referee noted that Attorney Schlieve provided a printout 

from the State Bar listing CLE attendance and dues payments from 

the early 1990s through January 2014. The referee said it was 

impossible to determine precisely what courses Attorney Schlieve 

had actually attended, since all were online courses. 

¶11 The referee also said: 

Ms. Schlieve is to be commended for the efforts 

she has taken to update her education on various legal 

topics. However attending courses on Whistleblowing 

cases involving the SEC or IRS, or Sarbanes-Oxley, or 

Mining Loss Symposiums, would seem to have little 

bearing on her preferred practice areas. More 

importantly, the record reflects that Ms. Schlieve has 

not approached her re-education in an organized, 

consistent and deliberate fashion. She has not 

planned and prepared for the day when her license to 

practice may be reinstated. She has taken courses for 

the sake of taking courses in order to show that she 

has gone beyond the minimum requirements of the rules. 
Nos. 1997AP3862-D 

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¶12 The referee said that Ms. Albert's testimony about 

Attorney Schlieve's participation in the WisLAP program raised a 

number of serious questions. The referee said that after 

Attorney Schlieve's second positive test for codeine, and after 

Ms. Albert had informed Attorney Schlieve that WisLAP would 

continue with monitoring efforts through the reinstatement 

hearing but not thereafter, Attorney Schlieve contacted her 

doctor's office and withdrew the medical release in favor of 

WisLAP. Because of the positive drug screen in February of 

2014, WisLAP again requested a list of Attorney Schlieve's 

current medications and the dates they were first prescribed. 

When the list was not forthcoming, WisLAP staff followed up with 

the doctor and was informed that there was no medical 

authorization from the patient. 

¶13 The referee noted that around March 7, 2014, Attorney 

Schlieve instructed her doctor's office to release the 

information that she had a prescription for acetaminophen with 

codeine, although the date when it was first prescribed was not 

provided. The referee queries, "Was Ms. Schlieve attempting to 

fabricate an explanation for the positive drug screen showing 

codeine in her system? At a minimum, it would seem that Ms. 

Schlieve was less than forthcoming in WisLAP's efforts to 

understand the reason for the positive drug screen." 

¶14 While the referee said he was satisfied that the

medical incapacity of alcoholism has been removed, the referee 

said that, based on her interactions with WisLAP, two positive 
Nos. 1997AP3862-D 

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drug screens showing codeine in her system, and her inability to 

complete sustained monitoring for a period of at least 12 

months, there was no objective verification from WisLAP that 

Attorney Schlieve does not still suffer from a medical 

incapacity. Moreover, the referee concluded that Attorney 

Schlieve failed to sustain her burden to prove by clear, 

satisfactory, and convincing evidence that she is currently fit 

to resume the practice of law within the meaning of

SCR 22.36(6). 

¶15 Attorney Schlieve argues that she has in fact 

presented clear, satisfactory, and convincing evidence both that 

her medical incapacity has been removed and that she is fit to 

practice law. At oral argument, she stated that she would be 

amenable to having her law practice monitored by a licensed 

attorney. She said that an attorney indicated he would be 

willing to monitor her. Attorney Schlieve stated that if her 

law license is reinstated, she would like to practice in the 

areas of adoption and immigration. She said the attorney she 

identified as a possible monitor has no experience in either of 

those practice areas. 

¶16 The Office of Lawyer Regulation (OLR) argues that the 

referee's findings, conclusions, and recommendations should be 

upheld. The OLR notes that the referee had an extensive 

opportunity to make personal observations of Attorney Schlieve 

and the other witnesses, and that the referee set forth and 

explained in detail the rationale and basis for his conclusion 
Nos. 1997AP3862-D 

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9 

that Attorney Schlieve's reinstatement petition should be 

denied. 

¶17 When we review a referee's report and recommendation, 

we will adopt the referee's findings of fact unless they are 

clearly erroneous. Conclusions of law are reviewed de novo. 

See In re Disciplinary Proceedings Against Eisenberg, 

2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. 

¶18 Following a suspension for medical incapacity, an 

attorney seeking the reinstatement of his or her license to 

practice law must show both that the medical incapacity has been 

removed and that the petitioner is fit to resume the practice of 

law. As we noted in our order denying Attorney Schlieve's 

previous reinstatement petition: 

The term "fit," as used in 22.36(6) with the 

phrase "to practice law," encompasses more than the

removal of a medical incapacity or being in a 

physically, mentally, or morally sound state. The 

term "fit" is sufficiently broad to imply a state of 

preparedness to render competent legal services; that 

is, to be prepared to provide the measure of expertise 

to ensure the attorney may be safely recommended to

the community as a person to be consulted by and to

represent others in legal matters. 

Schlieve, 323 Wis. 2d 654, ¶24. 

¶19 Upon careful review of this matter, we agree with the 

referee that Attorney Schlieve has failed to demonstrate that 

she is currently fit to resume the practice of law. 

Accordingly, we deny her petition for reinstatement. 

¶20 Attorney Schlieve has filed an objection to the OLR's 

statement of costs. Among other things, she argues that costs 
Nos. 1997AP3862-D 

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should not include the fees of counsel for the OLR. This 

court's general policy, as expressed in SCR 22.24(1m), is to 

impose all costs, including the expenses of counsel for the OLR, 

upon the respondent. We find no reason to depart from that 

general practice here. 

¶21 IT IS ORDERED that the petition of Nancy A. Schlieve 

seeking reinstatement of her license to practice law in 

Wisconsin is denied. 

¶22 IT IS FURTHER ORDERED that within 180 days of the date 

of this order, Nancy A. Schlieve shall pay to the Office of 

Lawyer Regulation the costs of this proceeding, totaling 

$20,367.49. If the costs are not paid within the time specified 

and absent a showing to this court of her inability to pay the 

costs within that time, the license of Nancy A. Schlieve to 

practice law in Wisconsin shall remain suspended until further 

order of the court. 
Nos. 1997AP3862-D.ssa 

1996AP3390-D.ssa 

1 

¶23 SHIRLEY S. ABRAHAMSON, J. (dissenting). The court 

is today reinstating the license of another attorney who 

suffered from a medical incapacity. See In Re Disciplinary 

Proceedings Against Linehan, 2015 WI 82, ___ Wis. 2d ___, 

___ N.W.2d ___. In that case, the court imposed numerous 

conditions to ensure that the attorney continues to receive 

appropriate treatment and monitoring to prevent a relapse and to 

protect his clients and the public. I would reinstate Attorney 

Schlieve's license to practice law in Wisconsin subject to 

strict conditions such as those imposed in Linehan.
Nos. 1997AP3862-D.ssa 

1996AP3390-D.ssa 

1