                                                            2018 WI 56

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2003AP3348-D, 2004AP2633-D, 2007AP2653-D,
                        2011AP584-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Michael D. Mandelman, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Michael D. Mandelman,
                                  Respondent-Appellant.

                         ON THE PETITION FOR REINSTATEMENT OF MANDELMAN

OPINION FILED:          May 24, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, J., dissents (opinion filed).
   NOT PARTICIPATING:   A.W. BRADLEY, J., did not participate.

ATTORNEYS:
                                                                       2018 WI 56
                                                               NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.

No.       2003AP3348-D
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          2007AP2653-D
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STATE OF WISCONSIN                          :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Michael D. Mandelman, Attorney at Law:

Office of Lawyer Regulation,                                        FILED
             Complainant-Respondent,
                                                               MAY 24, 2018
      v.
                                                                  Sheila T. Reiff
                                                               Clerk of Supreme Court
Michael D. Mandelman,

             Respondent-Appellant.




      ATTORNEY reinstatement proceeding.          Reinstatement denied.


      ¶1     PER   CURIAM.   We   review,   pursuant      to     Supreme      Court

Rule (SCR) 22.33(3),1 a report filed by Referee James W. Mohr,

Jr., recommending the court reinstate the license of Attorney


      1
       SCR 22.33(3) provides: "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."
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Michael     D.        Mandelman    to     practice          law    in    Wisconsin,      with

conditions.            The   Office     of     Lawyer       Regulation    (OLR)    did   not

appeal the referee's recommendation.                        After fully reviewing this

matter, we conclude that Attorney Mandelman 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 Mandelman should be required to pay the

costs of this reinstatement proceeding, which were $7,674.57 as

of October 10, 2017.

      ¶2      The      standards        that        apply     to   all    petitions       for

reinstatement after a disciplinary suspension or revocation are

set   forth      in    SCR   22.31(1).2          In    particular,       the    petitioning


      2
          SCR 22.31(1) provides:

           (1)   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.


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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.

     ¶3    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


     3
       SCR 22.29(4)(a)-(k) and (4m) provides that a petition
     for reinstatement shall show all of the following:

          (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.

                                                                       (continued)
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attorney shall demonstrate that the required representations in

the reinstatement petition are substantiated.

    ¶4   When   reviewing   referee   reports   in     reinstatement

proceedings, we utilize standards of review similar to those we

use for reviewing referee reports in disciplinary proceedings.

We do not overturn a referee's findings of fact unless they are

clearly erroneous.   On the other hand, 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


         (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
    petitioner's explanation of the failure or inability
    to do so.


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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.

      ¶5     Attorney        Mandelman         was      licensed      to    practice       law    in

Wisconsin       in    1980.          He      has      been      the     subject       of     seven

disciplinary proceedings.                  His license has been suspended or

revoked since 2006.

      ¶6     In 1990, Attorney Mandelman was suspended for one year

for 27 counts of misconduct that affected more than a dozen

clients.        The        complaint      included        misconduct         from     1985       and

involved    multiple         counts       of    failing         to    act   with    diligence,

failing    to    promptly       return         files      to    clients,      simultaneously

representing multiple clients with adverse interests, settling a

client's    claim      without       authorization,             failing      to     communicate

with clients, and making a misrepresentation to the former Board

of    Attorneys        Professional             Responsibility              (BAPR),        In     re

Disciplinary Proceedings Against Mandelman, 158 Wis. 2d 1, 460

N.W.2d 749       (1990).        In        this,         Attorney       Mandelman's          first

disciplinary proceeding, the referee expressed concern about the

"pattern of a large number and repeated offenses over a period

of several years."              This court commented that the misconduct

"establish[ed]         a     definite          pattern         of    Attorney      Mandelman's

disregard of very basic ethical obligations of lawyers."                                   Id.

      ¶7     When      that      suspension              ended,       Attorney        Mandelman

petitioned for reinstatement of his license.                                The court denied

his    reinstatement           petition            on     two        grounds:       additional
professional         misconduct        was      discovered,          including      his     post-

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suspension violation of the rules governing the handling of his

client trust account and, during the reinstatement proceeding

itself, he gave incomplete and evasive responses to the district

committee and to the BAPR.

       ¶8    In response to the additional professional misconduct,

the court suspended Attorney Mandelman's license for 18 months,

imposed      consecutive        to     the       termination        of     the        earlier

suspension.       In re Disciplinary Proceedings Against Mandelman,

182 Wis. 2d 583, 514 N.W.2d 11 (1994).                    That misconduct included

failing to act with diligence, failing to respond to clients'

requests for information, failing to refund a client's retainer,

violating the rules regarding trust accounts following his 1990

suspension,       and    failing      to     provide       complete        and       accurate

responses to BAPR.        Id.

       ¶9    In 1995, we reinstated Attorney Mandelman's license

with   certain     conditions         that   were        intended    to        ensure     that

Attorney      Mandelman       remained           compliant       with          our     rules.

Unfortunately, those conditions did not accomplish the desired

result.

       ¶10   In   1999,     Attorney       Mandelman       received        a       consensual

private reprimand for making a false statement of fact to a

tribunal.         Private    Reprimand           No.   1999-18      (electronic           copy

available           at           https://compendium.wicourts.gov/app/raw/

002085.html).

       ¶11   On   December      12,    2003,       the    OLR    filed         a    complaint
alleging 13 counts of misconduct.                      The parties litigated the

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case vigorously, and, in 2006, we suspended Attorney Mandelman

for nine months for multiple instances of misconduct, including

failing to act with reasonable diligence, failing to utilize a

written     fee   agreement       in   a   medical     malpractice         case,       and

persuading a client to sign a release of claims against him

without the client obtaining independent representation.                             In re

Disciplinary      Proceedings      Against       Mandelman,       2006    WI    45,    290

Wis. 2d 158, 714 N.W.2d 512.

      ¶12   In 2006, Attorney Mandelman also received a separate

consensual    private     reprimand        for    drawing     a    check       from    his

business account to make a mortgage payment of a personal injury

client.       Private       Reprimand      No.     2006-21        (electronic         copy

available           at            https://compendium.wicourts.gov/app/raw/

001927.html).

      ¶13   In    2009,     Attorney       Mandelman,       who     had        not    been

reinstated, was suspended for one year for additional misconduct

that included collecting a fee without performing any work for

the   client,     failing    to    provide       the   client      with    a     written

settlement statement, retaining a client's funds for more than

four years, making misrepresentations to a client, failing to

obtain a client's signature on a settlement check and failing to

deposit the settlement funds into the client trust account, and

failing to provide a client's file and funds to the client.                             In

re Disciplinary Proceedings Against Mandelman, 2009 WI 40, 317

Wis. 2d 215, 765 N.W.2d 788.



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     ¶14    On August 1, 2014, in the wake of the discovery of

still more misconduct, this court revoked Attorney Mandelman's

license    to    practice      law,     pursuant    to   a    stipulation            between

Attorney Mandelman and the OLR.                In re Disciplinary Proceedings

Against Mandelman, 2014 WI 100, 358 Wis. 2d 179, 851 N.W.2d 401.

The misconduct in the revocation proceeding involved 22 counts

of   misconduct        for    Attorney     Mandelman's        handling          of    trust

accounts and funds, including commingling personal and business

funds with client trust funds, converting client trust funds by

engaging    in    trust       account     transactions       that        left     negative

balances   in    his    own    subsidiary      accounts,      failing       to       deliver

trust funds to a client over a period of years, failing to keep

complete and accurate trust account records, and on multiple

occasions, filing income tax returns that were false.                             Attorney

Mandelman's      misconduct      also    included    lack     of     diligence         in   a

matter, failing to notify a client of his suspension in another,

and providing a false affidavit to the OLR.                   Id.

     ¶15    The revocation was made retroactive to May 29, 2009,

the effective date of a prior one-year suspension from which

Attorney Mandelman had not been reinstated.                   Accordingly, he was

immediately eligible to file a reinstatement petition, and he

did so on August 5, 2014.

     ¶16    We    denied       that      petition.           In     re     Disciplinary

Proceedings Against Mandelman, 2015 WI 105, 365 Wis. 2d 457, 871

N.W.2d 682.      We observed:



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     The scope and seriousness of Attorney Mandelman's
     prior misconduct reveals a lawyer who lacked a proper
     understanding of and attitude toward the standards
     that are imposed upon members of the bar.

     . . .

     Attorney Mandelman has accepted responsibility for his
     misconduct,   but   the   mitigating   effect   of  his
     acceptance of responsibility must be viewed in
     relation to his extensive disciplinary history along
     with the number of counts and the nature of his
     misconduct.    The hard work Attorney Mandelman has
     undertaken to restructure his life and pay past due
     obligations to clients, creditors, and the court
     system   is   commendable,   but   not   sufficient  to
     demonstrate that reinstatement is appropriate at this
     time. He has cleaned up his act; now he must stay the
     course.   This record lacks sufficient evidence that
     things will be different if he is reinstated to the
     practice of law again.
     ¶17   On March 21, 2017, Attorney Mandelman filed a second

petition for the reinstatement of his license to practice law in

Wisconsin.    The OLR filed a response on July 31, 2017, stating

that it did not oppose Attorney Mandelman's reinstatement but

recommended   that    if   reinstated,   his   practice   be    subject   to

certain conditions.
     ¶18   The referee conducted a public hearing on August 31,

2017.    Attorney Mandelman testified on his own behalf and called

seven    additional    witnesses,   including     four    attorneys,      an

architect, an employer, his faculty advisor, and a friend who

credits Attorney Mandelman with offering her emotional support

and encouraging her to obtain treatment.4        The referee noted that
     4
       Several additional letters supporting Attorney Mandelman's
petition were also received into evidence.


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many of these witnesses were not aware of Attorney Mandelman's

prior       disciplinary        problems,        but      all    spoke    to     his   current

demeanor         and    felt     that     he     was      intelligent,         hard-working,

responsible,           and    trustworthy.             The      referee   described       their

testimony in support of Attorney Mandelman's reinstatement as

"honest         and    sincere."          The     referee         filed    his    report     on

September 20, 2017, recommending conditional reinstatement.

       ¶19      Many    of     the   criteria        we      consider     in   reinstatement

proceedings focus on what the lawyer has done since suspension

or revocation.           The referee found, and we agree, that Attorney

Mandelman has satisfied these criteria.                           The referee found that

Attorney Mandelman had 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); that

he has complied with the terms of the suspension and revocation

orders, SCR 22.29(4)(c);5 that he has maintained competence and

learning in the law, SCR 22.29(4)(d);6 that his conduct since the

       5
       The referee noted that Attorney Mandelman has not yet paid
the entire amount of costs owed to the OLR, but he has executed
an installment agreement and is making payments as his resources
permit.   As the referee noted, Attorney Mandelman's level of
debt is a concern but that, alone, would not preclude his
reinstatement.
       6
       The referee noted that Attorney Mandelman is compliant
with his CLE requirements, has completed a number of CLE
courses, and has taken and successfully passed the Multistate
Professional Responsibility Examination.


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revocation       has     been       exemplary         and      above      reproach,

SCR 22.29(4)(e);7        and     that     he     has        complied     with     the

SCR 22.26(1)(e)        affidavit,       SCR 22.29(4)(h).           In     addition,

Attorney Mandelman outlined his activities during his suspension

and revocation as required by SCR 22.29(4)(k),8 and stated that

if   reinstated,   he    wants    to    engage   in    the    practice    of    civil

litigation   and   work    for     a    law   firm    or    organization    and   to

specialize in construction law, as required by SCR 22.29(4)(j).

The referee found, further, that Attorney Mandelman has made

restitution to or satisfied all claims of persons injured or

harmed by his misconduct, as required by SCR 22.29(4)(4m).

      ¶20   We accept the referee's findings and conclusions on

these requirements for reinstatement.

      ¶21   As   the     referee       discerned,      our     concern     in    this

reinstatement proceeding relates to whether Attorney Mandelman

      7
       The referee noted that Attorney Mandelman's conduct has
been exemplary both in avoiding any inappropriate behavior, and
in affirmatively seeking employment, while at the same time
helping others.
      8
       Attorney Mandelman obtained a master's degree and as of
the date of the reinstatement hearing had nearly completed a PhD
in architecture at the University of Wisconsin-Milwaukee.     He
has cared for an ailing mother, worked in a computer lab for the
architecture department, assisting students by troubleshooting
problems with computer equipment, and worked closely with
department faculty and staff members.    He has been a property
manager, taught classes to high school students, has been
employed as a staff architect, worked at other part time jobs,
and has assisted others in a counseling role.



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has       the    moral     character     to     practice       law    in     this    state,

SCR 22.31(1)(a); whether the resumption of his practice would be

detrimental to the administration of justice or subversive of

the public interest, SCR 22.31(1)(b); whether he has a proper

understanding         of    and    attitude     toward    the    standards         that   are

imposed upon members of the bar and will act in conformity with

them, SCR 22.29(4)(f); and whether he can be safely recommended

as    a    person     fit     to    represent      clients      and   to     aid    in    the

administration of justice in this state, SCR 22.29(4)(g).

          ¶22    The referee acknowledged the difficulty inherent in

these assessments.            He observed:

          No one can predict the future - certainly not this
          Referee. The judgment that is asked to be made is an
          intuitive one, based upon observation of witnesses,
          common sense and experience.

          I believe everyone lives with the hope that people can
          change themselves, and if they do, they are perhaps
          entitled to a second chance.

          After giving this matter a great deal of thought, and
          for the following reasons, I believe that time has
          arrived for Mr. Mandelman.    I believe he has earned
          the right to resume practicing law, subject to a
          number of recommended restrictions, set forth below.
          ¶23    The referee concluded that Attorney Mandelman had met

his burden of proof on these factors such that reinstatement,

albeit          conditional        reinstatement,        was    appropriate.              See

Referee's Report at 14-15, Findings of Fact (FF) 18, FF 20-21

and Conclusions of Law (CL) 9-11.




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     ¶24    We     benefit      from    the        referee's         findings       and

conclusions,      particularly     when,      as    here,      the     referee      has

provided us with such a thoughtful and well-structured report.

The ultimate determination of who may practice law in Wisconsin

however,    remains     with   this    court.       We   disagree       with     these

specific findings and we reach a different conclusion of law

with respect to SCRs 22.29(4)(f)-(g) and 22.31(1)(a)-(b).9

     ¶25    These criteria require us to undertake a comprehensive

assessment of the lawyer and this includes consideration of the

nature     of    the   lawyer's    underlying       misconduct.        See     In    re

Disciplinary      Proceedings     Against     Hersh,     108   Wis. 2d 450,         321

N.W.2d 927 (1982).        In In re Disciplinary Proceedings Against


     9
       Specifically, we reject FF 18 (finding that "Mandelman now
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 in the future"); FF 20 (finding
that "Mandelman 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 court"); and FF 21 (finding "Mandelman presently
has the moral character to practice law in Wisconsin and that
his resumption of the practice of law, under the conditions set
forth below, will not be detrimental to the administration of
justice or subversive of the public interest").

     We reach a different conclusion of law than the referee
with respect to CL 9 (concluding that "Mandelman has therefore
satisfied   the  requirements   of  SCR   22.29(4)(f)"); CL   10
(concluding that "Mandelman therefore satisfied the requirements
of SCR 22.29(4)(g)"); CL 11 (concluding that "Mandelman has
satisfied the requirements of SCR 22.31(1)(a) and (b)").


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Penn, 2002 WI 5, ¶8, 249 Wis. 2d 667, 638 N.W.2d 287, this court

held:

      [T]he referee conducting a hearing on the petition for
      reinstatement must engage in a full and unrestricted
      evaluation of the petitioner's past, present, and
      predicted future behavior, as well as any other
      relevant information going to the issue of whether the
      petitioner has the moral character to practice law in
      this state and whether his or her resumption of the
      practice   of  law   would   be  detrimental  to   the
      administration of justice or subversive to the public
      interest.
      ¶26   From     Attorney      Mandelman's       very     first     disciplinary

proceeding in 1990, we observed a "definite pattern of Attorney

Mandelman's      disregard    of     very    basic    ethical     obligations      of

lawyers."     Since then, Attorney Mandelman has come before this

court many times, each time having committed serious misconduct

that affected numerous clients and encompassed not only neglect,

but   dishonesty     and     fraud.         In   1995,   we    tried     conditional

reinstatement.         It    failed.         Five    disciplinary        proceedings

ensued, culminating in Attorney Mandelman's license revocation.
      ¶27   As   a   result     of    his    pervasive,       serious,     and   very

troubling pattern of misconduct, Attorney Mandelman has created

a heavy burden for himself.            We conclude that Attorney Mandelman

has failed to meet his burden to prove to this court that he

possesses the requisite moral character to practice law in this

state, that he has a proper understanding of and attitude toward

the standards imposed upon members of the bar, that he will act
in conformity with those standards, and that he can be safely


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recommended       as    a   person       fit   to     be    consulted            by    others,       to

represent them, and to otherwise act in matters of trust and

confidence.       See SCR 22.29(4)(f) and (g).

       ¶28   Moreover,        we     cannot     say,       with       certainty,         that       the

passage of time alone will be sufficient to persuade us that

Attorney Mandelman will practice law in a manner that is honest,

ethical, and above reproach.

       ¶29   We     recognize        that      our     holding            today       will     leave

Attorney Mandelman asking what else he can do to persuade this

court to reinstate his law license.                     We recognize that he cannot

undo   his     past     misconduct.            This        conundrum         does      not     mean,

however, that this court is somehow compelled to reinstate his

license.     An attorney whose license was suspended or revoked for

misconduct has no right to reinstatement.                              Lathrop v. Donohue,

10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) (observing that

the practice of law is not a right but a privilege).                                   Nothing in

our    prior      attorney      disciplinary           decisions            implies          that    a

petitioner        for       reinstatement             enjoys          a     presumption              of

rehabilitation         upon    the       expiration        of     a       specified      term        of

suspension,        much       less       revocation.              In        re        Disciplinary

Proceedings Against Hyndman, 2002 WI 6, ¶4, 249 Wis. 2d 650, 638

N.W.2d 293.

       ¶30   This      assessment         is    not     intended           to     be     punitive.

Attorney     Mandelman        deserves         much    credit         for       his    impressive

accomplishments and we have every confidence that he has the
capacity     to    flourish        and    succeed      in       other       professional            and

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personal endeavors.             Rather, the primary justification for the

moral character requirement embodied in our reinstatement rules

is to protect the public, the courts, and the legal profession.

Any    doubt      concerning        a    lawyer's           moral       character      should    be

resolved     in    favor      of    protecting             the     public    by       denying   the

petition for reinstatement.

       ¶31     With     respect         to        the    costs     of    this     reinstatement

proceeding, it is this court's general practice to assess the

full     costs     of    a     proceeding                against    a     respondent.            See

SCR 22.24(1m).           We    find          no    extraordinary          circumstances         that

would warrant a reduction in the costs imposed and we find it

appropriate        to   assess       the          full     costs    of    the     reinstatement

proceeding against Attorney Mandelman.

       ¶32     IT IS ORDERED that the petition for reinstatement is

denied.

       ¶33     IT IS FURTHER OREDERED that within 60 days of the date

of this order, Michael D. Mandelman shall pay to the Office of

Lawyer    Regulation          the    costs          of     this    proceeding,         which    are

$7,674.57 as of October 10, 2017.

       ¶34     ANN WALSH BRADLEY, J., did not participate.




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                                                                No.   2003AP3348-D.ssa
                                                                      2004AP2633-D.ssa
                                                                      2007AP2653-D.ssa
                                                                       2011AP584-D.ssa


    ¶35       SHIRLEY S. ABRAHAMSON, J.              (dissenting).        I dissent

because   I    conclude    that   the     court     is    not   consistent   in   its

rulings on reinstatements.           See Petition for Readmission After

Voluntary     Resignation    of    Keith       B.   Daniels,     Jr.,   unpublished

order   (Apr.    20,     2018)    (Ann    Walsh     Bradley,      J.,   dissenting)

(highlighting      the    court's        failure     to    explain      inconsistent

results of two similarly situated petitioners).                         The court's

failure to properly explain its inconsistent decisions raises

due process concerns.




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    No.   2003AP3348-D.ssa
          2004AP2633-D.ssa
          2007AP2653-D.ssa
           2011AP584-D.ssa




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