2018 WI 99
SUPREME COURT OF WISCONSIN
CASE NO.: 2008AP85-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Brian P. Mularski, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Brian P. Mularski,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST MULARSKI
OPINION FILED: October 17, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 5, 2018
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant, there was a brief filed and
oral argument by Brian P. Mularski, Mequon.
For the complainant-respondent, there was a brief filed and
oral argument by Jonathan E. Hendrix and Office of Lawyer
Regulation, Madison.
2018 WI 99
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2008AP85-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Brian P. Mularski, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
OCT 17, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Brian P. Mularski,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
¶1 PER CURIAM. Attorney Brian P. Mularski appeals
Referee Jonathan V. Goodman's report recommending that we deny
Attorney Mularski's petition for reinstatement of his license to
practice law in Wisconsin. After fully reviewing this matter,
we agree that Attorney Mularski has not satisfied the criteria
required to resume the practice of law in this state, and we
deny his petition for reinstatement. We also determine that
Attorney Mularski should be required to pay the costs of this
No. 2008AP85-D
reinstatement proceeding, which are $6,000.60 as of September
19, 2018.
¶2 Attorney Mularski was admitted to practice law in
Wisconsin in 2000. In 2009, the Office of Lawyer Regulation
(OLR) filed a disciplinary complaint against Attorney Mularski
alleging 13 counts of professional misconduct in three client
matters. At the time, he had no prior discipline although his
law license was suspended for noncompliance with payment of
state bar dues and trust account certification requirements.
¶3 The disciplinary allegations involved problems with
fee agreements, acting without clients' knowledge or agreement,
failing to satisfy liens with settlement funds, disbursing funds
from an insufficient trust account, failing to maintain trust
records, making misrepresentations to insurers, modifying
releases, forging a client's signature on a release, failing to
ensure payment to medical providers, false representations on
settlement statements, distributing settlement proceeds despite
the existence of a lien, endorsing checks without authority,
making misrepresentations to the OLR, and submitting fabricated
letters to the OLR.
¶4 Attorney Mularski, who was also facing eight pending
grievance investigations, filed a petition for consensual
license revocation. On September 10, 2010, this court granted
Attorney Mularski's petition, revoking his law license. In re
Disciplinary Proceedings Against Mularski, 2010 WI 113, 329
Wis. 2d 273, 787 N.W.2d 834. As is relevant to this proceeding,
our order explicitly stated that:
2
No. 2008AP85-D
[a]s a condition of any future petition for
reinstatement, Attorney Mularski shall provide an
accounting and demonstrate he has made full
restitution to those individuals aggrieved by his
misconduct as alleged in the OLR complaint and the
pending investigations.
Id., ¶4.
¶5 On May 7, 2012, the State charged Attorney Mularski
with two felony counts of theft, alleging that between 2006 and
2009 Attorney Mularski had embezzled hundreds of thousands of
dollars from the trust account of his former law firm,
Eisenberg, Riley & Zimmerman. On October 23, 2012, Attorney
Mularski pled guilty to one felony count of theft and was
sentenced to five years of probation with one year at the
Milwaukee County House of Corrections as a condition of that
probation. He was ordered to have no contact with his former
firm. The sentencing court ordered Attorney Mularski to pay,
inter alia, restitution to the firm's trust account in the
amount of $338,019.96.1
¶6 On February 16, 2017, Attorney Mularski filed this
petition for reinstatement. The OLR opposed his petition. On
November 14, 2017, Referee Goodman conducted a public
reinstatement hearing. Attorney Mularski testified and one
former client appeared and testified in opposition to Attorney
Mularski's reinstatement. Attorney Mularski's former spouse
also appeared and testified. As relevant here, she reported
1
At the time of his sentencing Attorney Mularski had repaid
the firm over $238,000.
3
No. 2008AP85-D
that Attorney Mularski had claimed their children as exemptions
on his 2016 federal tax return, despite their marital settlement
agreement to the contrary.
¶7 Attorney Mularski described the tax issue as an
unintentional mistake and emphasized that he had amended that
tax return. Attorney Mularski disclosed that he and his former
spouse are currently involved in a contentious custody and
placement proceeding involving their children.
¶8 On December 14, 2017, the referee issued a report
recommending that the court deny Attorney Mularski's petition.
¶9 Attorney Mularski appeals. The parties filed briefs
and we conducted oral argument on September 5, 2018.
¶10 In our review, we accept a referee's findings of fact
unless they are clearly erroneous. We review a referee's legal
conclusions, including whether the attorney has satisfied the
criteria for reinstatement, on a de novo basis. In re
Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334
Wis. 2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings
Against Gral, 2010 WI 14, ¶22, 323 Wis. 2d 280, 779 N.W.2d 168.
¶11 The question before this court is whether we should
reinstate Attorney Mularski's license to practice law. Attorney
Mularski reasons that the only way he will ever satisfy his many
financial obligations will be if he is permitted to practice law
again. He asks the court to reinstate him so he can make
headway against his restitution obligations. He suggests he
could be reinstated with various conditions and restrictions
imposed on his license.
4
No. 2008AP85-D
¶12 The standards that apply to petitions for
reinstatement after a disciplinary suspension or revocation are
set forth in SCR 22.31(1).2 The petitioning attorney must
demonstrate by clear, satisfactory, and convincing evidence that
he or she has the moral character necessary to practice law in
this state, that his or her resumption of the practice of law
will not be detrimental to the administration of justice or
subversive of the public interest, and that the attorney has
complied fully with the terms of the suspension or revocation
order and the requirements of SCR 22.26.
¶13 In addition, SCR 22.31(1)(c) incorporates the
statements that a petition for reinstatement must contain
pursuant to SCR 22.29(4)(a)-(k) and (4m).3 Thus, the petitioning
2
SCR 22.31(1) provides the petitioner has the burden
of demonstrating, by clear, satisfactory, and
convincing evidence, all of the following:
(a) That he or she has the moral character to
practice law in Wisconsin.
(b) That his or her resumption of the practice of
law will not be detrimental to the administration of
justice or subversive of the public interest.
(c) That his or her representations in the
petition, including the representations required by
SCR 22.29(4)(a) to (m) and 22.29(5), are
substantiated.
(d) That he or she has complied fully with the
terms of the order of suspension or revocation and
with the requirements of SCR 22.26.
3
SCR 22.29(4)(a)-(k) and (4m) provides that a petition
for reinstatement shall show all of the following:
(continued)
5
No. 2008AP85-D
(a) The petitioner desires to have the
petitioner's license reinstated.
(b) The petitioner has not practiced law during
the period of suspension or revocation.
(c) The petitioner has complied fully with the
terms of the order of suspension or revocation and
will continue to comply with them until the
petitioner's license is reinstated.
(d) The petitioner has maintained competence and
learning in the law by attendance at identified
educational activities.
(e) The petitioner's conduct since the suspension
or revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of
and attitude toward the standards that are imposed
upon members of the bar and will act in conformity
with the standards.
(g) The petitioner can safely be recommended to
the legal profession, the courts and the public as a
person fit to be consulted by others and to represent
them and otherwise act in matters of trust and
confidence and in general to aid in the administration
of justice as a member of the bar and as an officer of
the courts.
(h) The petitioner has fully complied with the
requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license
if reinstated.
(k) A full description of all of the petitioner's
business activities during the period of suspension or
revocation.
(4m) The petitioner has made restitution to or
settled all claims of persons injured or harmed by
petitioner's misconduct, including reimbursement to
the Wisconsin lawyers' fund for client protection for
all payments made from that fund, or, if not, the
(continued)
6
No. 2008AP85-D
attorney needs to demonstrate that the required representations
in the reinstatement petition are substantiated.
¶14 The referee concluded and we agree that Attorney
Mularski has satisfied a number of the criteria required for
reinstatement. He has proven by clear and convincing evidence
that he sincerely desires to have his license reinstated,
SCR 22.29(4)(a); that he has not practiced law during the
periods of his suspension and revocation, SCR 22.29(4)(b); and
that he has maintained competence and learning in the law,
SCR 22.29(4)(d). He has explained how he would use his license
if reinstated, SCR 22.29(4)(j), and he has outlined his
activities during his revocation, SCR 22.29(4)(k). Indeed, the
referee concluded that Attorney Mularski "does have the moral
character to practice law in Wisconsin," SCR 22.31(1)(a). The
OLR has not appealed that conclusion.
¶15 However, the referee concluded that Attorney Mularski
fell short of several of the reinstatement requirements. The
most significant problem is Attorney Mularski's undisputed
failure to provide an accounting and demonstrate he has made
full restitution to those individuals aggrieved by his
misconduct. Before addressing this issue we will briefly
discuss the other concerns identified by the referee.
¶16 The referee concluded that it would be detrimental to
the administration of justice or subversive of the public
petitioner's explanation of the failure or inability
to do so.
7
No. 2008AP85-D
interest for Attorney Mularski to resume the practice of law,
SCR 22.31(1)(b), noting his failure to have sought and
identified a mentor in anticipation of his potential re-entry
into the practice of law. The referee also concluded that
Attorney Mularski failed to establish that his conduct since the
revocation has been exemplary and above reproach,
SCR 22.29(4)(e), noting the "improvident claiming of tax
exemptions for the couple's minor children" and his decision to
provide references from individuals who were unfamiliar with his
past. Attorney Mularski himself conceded that he failed to
satisfy SCR 22.29(4)(h), which requires a petitioner to fully
comply with the requirements set forth in SCR 22.26. Attorney
Mularski concedes he did not timely notify all clients of his
revocation in 2010.
¶17 These concerns alone might not be insurmountable
obstacles to reinstatement, particularly given the context in
which Attorney Mularski's former spouse offered her testimony.
However, the primary impediment to reinstatement is Attorney
Mularski's failure to provide the court with an accounting and
make arrangements for restitution. Addressing restitution is
required in all reinstatement proceedings, see, e.g.,
SCR 22.29(4)(c) and (4m), and was explicitly imposed in the
order granting his petition for consensual license revocation.
¶18 The referee found that "there is no evidence that
Respondent furnished a complete accounting and proof that he has
made full restitution to or settled all claims of all persons
harmed by his misconduct" adding that, nothing in this
8
No. 2008AP85-D
proceeding "gave any inkling that there was a plan to commence
repayment." Accordingly, the referee concluded that Attorney
Mularski failed to carry his burden of proof regarding
SCR 22.29(4)(4m) (requiring the lawyer to demonstrate that he or
she has made restitution to or satisfied all claims of persons
injured or harmed by his misconduct) and SCR 22.29(4)(c)
(requiring that he comply with the terms of the suspension and
revocation orders); see also SCR 22.31(1)(d) (requiring clear
and convincing evidence that he "has complied fully with the
terms of the order of suspension or revocation and with the
requirements of SCR 22.26.").4
¶19 The OLR agrees, noting that during the OLR's
investigation and at the hearing, Attorney Mularski was unable
to identify the amounts he owed to his former clients, or
provide documentation of payment.
¶20 Attorney Mularski acknowledges that he has not
provided the required accounting, much less satisfied his
restitution obligations. He contends this should not preclude
his reinstatement because, he says, creating the required
4
The referee also concluded that Attorney Mularski failed
to establish that he can be safely recommended to the legal
profession, the courts, and the public, SCR 22.29(4)(g), for
these same reasons. The referee made no explicit finding or
conclusion with respect to SCR 22.29(4)(f), but the record
supports the implicit conclusion that Attorney Mularski has
failed to demonstrate a proper understanding of and attitude
toward the standards that are imposed upon members of the bar
and will act in conformity with them.
9
No. 2008AP85-D
accounting is an impossible task. He says that he has "provided
all documentation he has available to show what has been paid,
and what may be due. No additional records are available, and
for the referee to find that [Mularski] has failed to meet his
burden is clearly erroneous."
¶21 We disagree. The record confirms that this is a
challenging problem to unravel, but also demonstrates that there
is more Attorney Mularski could do to respond to this court's
order and the requirement for reinstatement.
¶22 Creating an accounting that will identify the amount
of restitution owed to Attorney Mularski's former clients is
challenging because there are separate, sometimes overlapping,
orders and judgments. As noted, in the criminal proceeding
Attorney Mularski was ordered to pay $338,019.96 in restitution
to the Eisenberg firm.5 The allegations in the underlying OLR
disciplinary complaint overlap with those in the criminal
complaint, but also contained separate claims relating to
clients Attorney Mularski represented before he joined the
Eisenberg firm.
¶23 Meanwhile, some former clients have been reimbursed by
the Wisconsin Lawyers' Fund for Client Protection and others
5
Attorney Mularski says this dollar amount was intended to
represent a "cap" on restitution to reimburse the firm's trust
account, with the understanding that the amount might be reduced
upon evidence that he had satisfied obligations to clients. For
purposes of this proceeding he does not contest this dollar
amount.
10
No. 2008AP85-D
have obtained civil judgments against Attorney Mularski. These
judgments total hundreds of thousands of dollars. At least some
of these judgments and reimbursements presumably overlap with
client matters that comprise the criminal order for restitution.
¶24 Attorney Mularski says that he has no way to determine
which clients have been reimbursed without reviewing trust
account records from the Eisenberg firm. He says that the
Eisenberg firm has repeatedly declined to provide him with trust
account information. He reminds the court that during his
probation, a no-contact order precluded him from directly
seeking this information from his former firm. Attorney
Mularski says he sought assistance obtaining these records from
the circuit court, the district attorney's office, the
Department of Corrections, and the OLR, but to no avail.
Indeed, he appears to blame the OLR for his predicament,
complaining that the: "OLR had the authority to call witnesses
and request the information required to establish the amount of
restitution due and owing and calculate an accurate balance
due," and that the "OLR's decision to not contact the Eisenberg
firm to provide the relevant Trust Account records cannot be
held against the Respondent-Appellant."
¶25 However, this is revisionist history. The
difficulties regarding restitution long predate the criminal
proceeding and ensuing criminal restitution and no-contact
orders. Before we accepted Attorney Mularski's petition for
consensual license revocation in 2010, we were concerned about
the clients who were owed restitution, and issued detailed
11
No. 2008AP85-D
orders seeking to resolve restitution as to the clients
implicated in that proceeding.
¶26 For example, over eight years ago, by order dated
March 23, 2010, we directed Attorney Mularski to show cause why
an accounting and restitution should not be ordered as follows:
E.P.: restitution of $4,000 and an accounting;
K.C.: restitution of $6,121.33 and an accounting;
A.B. Medical Center: restitution of an undetermined
amount and an accounting;
C.U.: restitution of an undetermined amount and an
accounting;
J.C.: restitution of $125,000 and an accounting;
K.W.: restitution of $30,000 and an accounting;
E.D.: restitution of $39,000 and an accounting;
C.D.: restitution of an undetermined amount and an
accounting;
S.C.: restitution of $5,000 and an accounting;
J.H.: restitution of an undetermined amount and an
accounting; and
S.D.: restitution of an undetermined amount and an
accounting.
OLR v. Mularski, No. 2008AP85-D, unpublished order (Wis. S. Ct.
March 23, 2010).
¶27 The OLR filed a response agreeing that several of
these clients were entitled to restitution in amounts ranging
from just over $700 to approximately $12,000, for a total of
approximately $19,000. Attorney Mularski, in turn, filed a
12
No. 2008AP85-D
response essentially maintaining that no restitution was due to
any of these clients.
¶28 Despite his first-hand knowledge that this court was
keenly interested in ascertaining appropriate restitution to
compensate clients injured by Attorney Mularski's misconduct,
Attorney Mularski provided this court with no documentation,
much less an accounting, even with respect to the clients
identified in earlier court orders or those Attorney Mularski
represented before he joined the Eisenberg firm. For example,
both parties made repeated reference to a "spread-sheet" that
apparently reflects Attorney Mularski's best effort to establish
an accounting, but this document was not produced in this
proceeding. Without it neither the referee nor this court has
any way of independently determining whether the accounting
challenge is indeed an impossible task.
¶29 We wholly agree that the burden of proving a lawyer
has met the requirements for reinstatement rests with Attorney
Mularski, not the OLR. We understand the OLR's position to be
that the lawyer disciplinary system is not designed to provide
the mechanism to collect restitution in every case. See In re
Disciplinary Proceedings Against Nussberger, 2009 WI 103, ¶23,
321 Wis. 2d 576, 775 N.W.2d 525, ("while this court frequently
imposes restitution, historically the purpose of lawyer
discipline is not to make whole those harmed by attorney
misconduct"). However, given the complexity of this task, we
encourage the parties to cooperate to try to establish an
accounting and a restitution repayment schedule.
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No. 2008AP85-D
¶30 We conclude that Attorney Mularski has failed to meet
his burden to prove to this court that he has satisfied all the
requirements of SCR 22.31(1) necessary to justify reinstatement
of his license to practice law in Wisconsin.
¶31 With respect to the costs of this reinstatement
proceeding, it is our general practice to assess the full costs
of the proceeding against the petitioning attorney. See
SCR 22.24(1m). Nothing in this case warrants a reduction in the
costs, and we impose the full costs of the reinstatement
proceeding on Attorney Mularski.
¶32 IT IS ORDERED that the petition for reinstatement is
denied.
¶33 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Brian P. Mularski shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$6,000.60, as of September 19, 2018.
14
No. 2008AP85-D
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