                                                               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.
                                             13
                                                                    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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