                                                                    2017 WI 40

                   SUPREME COURT            OF    WISCONSIN
CASE NO.:                2015AP463-D
COMPLETE TITLE:          In the Matter of Disciplinary Proceedings
                         Against Christopher E. Meisel, Attorney at Law:

                         Office of Lawyer Regulation,
                                   Complainant-Respondent,
                              v.
                         Christopher E. Meisel,
                                   Respondent-Appellant.

                              DISCIPLINARY PROCEEDINGS AGAINST MEISEL

OPINION FILED:           April 26, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:           January 11, 2017

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:            ABRAHAMSON, J. dissents (opinion filed).
   NOT PARTICIPATING:


ATTORNEYS:


       For        the   respondent-appellant    there   were       briefs   filed   by
Terry        E.     Johnson   and   Peterson,    Johnson       &     Murray,   S.C.,
Milwaukee, and oral argument by Terry E. Johnson.


       For the Office of Lawyer Regulation a brief was filed by
Matthew J. Price and Foley & Lardner LLP, Milwaukee, and oral
argument by Matthew J. Price.
                                                                         2017 WI 40
                                                                 NOTICE
                                                   This opinion is subject to further
                                                   editing and modification.   The final
                                                   version will appear in the bound
                                                   volume of the official reports.
No.    2015AP463-D


STATE OF WISCONSIN                             :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Christopher E. Meisel, Attorney at Law:


Office of Lawyer Regulation,                                          FILED
           Complainant-Respondent,                               APR 26, 2017
      v.                                                            Diane M. Fremgen
                                                                 Clerk of Supreme Court
Christopher E. Meisel,

           Respondent-Appellant.




      ATTORNEY      disciplinary    proceeding.           Attorney's         license

suspended.


      ¶1   PER    CURIAM.    Attorney      Christopher           E.    Meisel      has

appealed Referee Hannah Dugan's recommendation that his license

to practice law in Wisconsin be suspended for two years for 15

counts of misconduct, which included converting approximately

$175,000   from   two   estates    and   two       guardianship       proceedings.

Attorney   Meisel    stipulated    to    all   counts       of   misconduct        but

asserts that, rather than a two-year suspension, a five-month
suspension of his law license is an adequate sanction.
                                                                               No.    2015AP463-D



      ¶2      Upon    careful     review       of    this     matter,          we    uphold          the

referee's findings of fact and conclusions of law.                                  We conclude,

however,      that    rather      than     a       two-year      suspension,              Attorney

Meisel's license to practice law should be suspended for 18

months.      We further agree with the referee that Attorney Meisel

should be required to pay the full costs of this proceeding,

which   are    $10,831.67       as    of   February         7,   2017.          Although             the

referee    recommended       that      various        conditions          be    imposed             upon

Attorney Meisel, we find that the imposition of conditions would

be better addressed in a future reinstatement proceeding.

      ¶3      Attorney     Meisel      was         admitted      to       practice            law     in

Wisconsin in 1994.          He has no prior disciplinary history.                                     In

October of 2006, Attorney Meisel was diagnosed with brain cancer

and   days    later    underwent         brain       surgery         to   remove          a    tumor.

Following      surgery,      he      received        chemotherapy              and     radiation

treatments, which treatments continued until 2008.                                  Although his

condition     is     currently       stable,        Attorney     Meisel         will          require

constant monitoring.           He is not able to work long hours.                               While
prior to his brain surgery he was earning over $100,000 per

year, in recent years he has earned approximately $45,000 per

year.

      ¶4      In 2008 Attorney Meisel and his wife decided to pursue

international adoption of two children from Guatemala.                                        One of

the   children       was   later     diagnosed         with      a    number         of       medical

issues,      including     significant         brain        formation          issues,          legal

blindness, and learning disabilities.                       In order to provide that
child with the resources she needed, the family moved from the
                                               2
                                                                            No.     2015AP463-D



school district in which they were living to a different school

district that they believed had better resources to educate the

child.     The    purchase    price       of   the        home    in       the     new   school

district   was    $125,000    more    than         the    price       of    the     house     the

family sold.

    ¶5      In addition to his personal health problems and the

medical issues of his daughter, Attorney Meisel was also under

financial distress due to a real estate business called King

Park Investment Company, LLC, (King Park), which he owned with

another    man.      King    Park    is    a       real    estate          venture       in   the

Marquette University area in Milwaukee.

    ¶6      The Office of Lawyer Regulation (OLR) filed its 15

count    complaint    against      Attorney         Meisel       on    March       10,    2015.

Counts one through three of the complaint arose out of Attorney

Meisel's handling of the estate of B.T., who died in October

2008.     Attorney Meisel was retained to handle the estate and

pursue a potential wrongful death claim.                     In June 2009, he filed

a petition for special administration of the estate in Milwaukee
County Circuit Court.           Following a settlement of the wrongful

death claim, in March 2011 Attorney Meisel filed a petition for

formal    administration      of    the    estate.               The       OLR's     complaint

alleged that Attorney Meisel disbursed numerous checks from his

trust account for the benefit of King Park from funds belonging

to the estate.

    ¶7      The   specific      counts        of    misconduct             alleged       in   the

complaint arising out of B.T.'s estate were as follows:


                                          3
                                                   No.   2015AP463-D


    Count 1:    By failing to hold $50,003.29 in trust
    belonging to the Estate of B.T., Attorney Meisel
    violated SCR 20:1.15(b)(1).1

    Count 2: By converting to his own purposes $50,003.29
    in trust funds belonging to the estate of B.T.,
    Attorney Meisel violated SCR 20:8.4(c).2

    Count 3: By depositing $47,244.20 in personal and law
    firm funds into his trust account in April 2012, to
    replace the bulk of the funds that he had converted
    from the B.T. Estate, Attorney Meisel violated SCR
    20:1.15(b)(3).3
    ¶8   Counts 4 through 14 of the OLR's complaint arose out

of Attorney Meisel's appointment as guardian of the estates of

D.C. and Y.M., step-sisters whose parents died in an automobile

accident in February of 2006.     D.C. was five years at the time

    1
       Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.

    SCR 20:1.15(b)(1) provides:

         A lawyer shall hold in trust, separate from the
    lawyer's own property, that property of clients and
    3rd parties that is in the lawyer's possession in
    connection with a representation. All funds of clients
    and 3rd parties paid to a lawyer or law firm in
    connection with a representation shall be deposited in
    one or more identifiable trust accounts.
    2
       SCR 20:8.4(c) provides:  "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
    3
       SCR 20:1.15(b)(3) provides:   "No funds belonging to the
lawyer or law firm, except funds reasonably sufficient to pay
monthly account service charges, may be deposited or retained in
a trust account."


                                  4
                                                                           No.        2015AP463-D



of   the    accident,      and       Y.M.    was    close     to     one   year       old.     A

Milwaukee County probate court commissioner appointed Attorney

Meisel      as    guardian      of    the     girls'       estates    in   October        2007.

Attorney Meisel established separate guardianship accounts for

the children.

      ¶9         Pursuant to Wis. Stat. § 54.62, a guardian is required

to file with the court an annual accounting for a guardianship

prior to April 15 of the following year.                              Amy Wochos, legal

counsel and senior administrator for the Milwaukee County Clerk

of Circuit Court, testified at the evidentiary hearing before

the referee that she oversees filings in probate court.                                       She

testified that in 2013 she became aware that an order to show

cause had been issued against Attorney Meisel by the probate

court because he had failed to file the annual accountings for

the children's guardianship.

      ¶10        Ms.   Wochos    testified          that    in     early   2014        Attorney

Meisel came to the probate office and asked to speak with her.

She said Attorney Meisel indicated he had taken money from the
minor      guardianship      accounts,         that    he    had     self-reported           this

behavior to the OLR, and that he had either put the money back

or was in the process of putting it back and understood he

needed to be relieved of his duties as guardian for the girls.

Attorney     Meisel      converted          money    from    the     estate      of    J.D.    to

replace the funds he took from the guardianship accounts.

      ¶11        OLR's   complaint          alleged    the       following        counts       of

misconduct with respect to the two guardianship proceedings and
the second estate proceeding:
                                               5
                                               No.   2015AP463-D


Count 4: By failing to hold as much as $21,000 in the
D.C. Account at times between March 2009 and November
2012, Attorney Meisel violated SCR 20:1.15(j)(l).4

Count   5:  By   converting and  re-converting  D.C.
Guardianship funds to his own purposes between March
2009 and March 2012, Attorney Meisel violated SCR
20:8.4(c).

Count   6:  By   depositing  into  the   D.C.  Account
$57,800.61 in King Park funds and funds converted from
his trust account and the Estate of J.D., Attorney
Meisel violated SCR 20:1.15(j)(l).

Count   7:    By  depositing   into  the   D.C.  Account
$57,800.61   in King Park funds and funds converted from
his trust    account and the Estate of J.D., thereby
concealing   his conversion and re-conversion of funds
belonging    to D.C., Attorney Meisel violated SCR
20:8.4(c).

Count 8: By failing to hold as much as $21,455.25 in
the Y.M. Account between March 2009 and November 2012,
Attorney Meisel violated SCR 20:1.15(j)(l).

Count 9:     By converting and re-converting Y.M.
Guardianship funds to his own purposes between March
2009 and March 2012, Attorney Meisel violated SCR
20:8.4(c).

Count 10:     By depositing into the Y.M. Account
$70,056.12 in King Park funds and funds converted from
his trust account and the Estate of J.D., Attorney
Meisel violated SCR 20:1.15(j)(1).



4
    SCR 20:1.15(j)(l) provides:

     A lawyer shall hold in trust, separate from the
lawyer's own funds or property, those funds or that
property of clients or 3rd parties that are in the
lawyer's possession when     acting in a fiduciary
capacity that directly arises in the course of, or as
a result of, a lawyer-client relationship or by
appointment of a court.


                             6
                                                      No.    2015AP463-D


    Count 11:       By depositing into the Y.M. Account
    $70,056.12   in King Park funds and funds converted from
    his trust    account and the Estate of J.D., thereby
    concealing   his conversion and re-conversion of funds
    belonging    to Y.M., Attorney Meisel violated SCR
    20:8.4(c),

    Count 12:       By filing annual accountings with the
    Milwaukee County Probate Court for the D.C. and Y.M.
    Guardianships,     which   failed    to  disclose the
    disbursements that he made from those guardianships
    and included documentation of account balances that
    had been deliberately, and temporarily, inflated to
    document the required balances and conceal his
    conversions,      Attorney    Meisel    violated  SCR
                  5
    20:3.3(a)(l).

    Count 13: By failing to hold as much as $31,201.48 in
    the fiduciary account for the Estate of J.D., Attorney
    Meisel violated SCR 20:1.15(j)(1).

    Count 14:   By converting to his own purposes as much
    as $31,201.48 in the fiduciary account for the Estate
    of J.D., Attorney Meisel violated SCR 20:8.4(c).



    ¶12    Count 15 of the OLR's complaint alleged:

    Count 15: By failing to maintain a transaction
    register and client ledgers with running balances, and
    by failing to perform monthly reconciliations of his
    trust account, thereby failing to maintain complete
    records of a trust account, Attorney Meisel violated
    SCR 20:1.15(f)(l)a., (f)(l)b., and f(i)g.6

    5
       SCR 20:3.3(a)(l) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer."
    6
        SCR 20:1.15(f)(l)a provides:

         The   transaction   register   shall contain   a
    chronological record of all account transactions, and
    shall include all of the following:

                                                            (continued)
                                 7
                                                      No.   2015AP463-D




        1. the date, source, and amount of all deposits;

     2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;

     3. the date and amount of every other deposit or
deduction of whatever nature;

     4. the identity of the client for whom funds were
deposited or disbursed; and

     5. the      balance   in       the   account   after   each
transaction.

Section 20:1.15(f)(1)b provides:

     A subsidiary ledger shall be maintained for each
client or 3rd party for whom the lawyer receives trust
funds that are deposited in an IOLTA account or any
other pooled trust account. The lawyer shall record
each receipt and disbursement of a client's or 3rd
party's   funds   and   the  balance   following  each
transaction. A lawyer shall not disburse funds from an
IOLTA account or any pooled trust account that would
create a negative balance with respect to any
individual client or matter.

. . .


Section 20:1.15(f)(1)g provides:

     For each trust account, the lawyer shall prepare
and retain a printed reconciliation report on a
regular and periodic basis not less frequently than
every 30 days. Each reconciliation report shall show
all of the following balances and verify that they are
identical:

     1. the balance that appears in the transaction
register as of the reporting date;

     2. the total of all subsidiary ledger balances
for IOLTA accounts and other pooled trust accounts,
determined by listing and totaling the balances in the
                                                (continued)
                                8
                                                                         No.       2015AP463-D



       ¶13    Attorney Meisel filed an answer to the complaint in

April 2015.         In December of 2015, Attorney Meisel and the OLR

entered into a stipulation whereby Attorney Meisel withdrew his

answer to the complaint and pled no contest to each allegation

of misconduct set forth in the complaint.                         The parties agreed

that the complaint could serve as the factual basis for the

referee's      determination          of      misconduct         and     the       referee's

recommendation as to discipline.                     The parties further agreed

that    the    evidentiary          hearing       would    be     limited         to    taking

additional     evidence       and    argument      to     facilitate        the    referee's

recommendation to this court as to the appropriate amount of

discipline.          The     OLR's    complaint         had     sought      a     three-year

suspension of Attorney Meisel's law license.

       ¶14    The    evidentiary      hearing       took      place    on       January   25,

2016.    In addition to Amy Wochos, Heather Coning, an insurance

and    bonding      agent,   and     Attorney      Meisel       testified        in    person.

Dr. Mark G. Malkin testified by telephone.

       ¶15    Attorney Meisel testified that if he were to lose his
license to practice law for two or three years, he did not

believe he would ever be able to return to the practice of law.




       individual client ledgers and the ledger for account
       fees and charges, as of the reporting date; and

            3. the adjusted balance, determined by adding
       outstanding deposits and other credits to the balance
       in the financial institution's monthly statement and
       subtracting outstanding checks and other deductions
       from the balance in the monthly statement.


                                              9
                                                         No.    2015AP463-D



When asked by the referee about his conversion of the funds,

Attorney Meisel said:

      I did it.    It was wrong.   The whole world was in a
      fog. I know I did it – it was wrong. I was bonded at
      all times. I'm not making a justification for it, but
      I didn't think it would come to a problem. . . .

      I knew I did it.    I have never denied that.   Why?
      It's hard to say. I was juggling so many things that
      I just did it without really thinking, you know.   I
      just figured that money would be coming in or – I
      don't know. It was dumb.
      ¶16   Dr. Malkin's   December     31,   2015,   letter/report     to

Attorney Terry E. Johnson, Attorney Meisel's counsel in this

matter, was received into evidence at the hearing.             The letter

indicates that Dr. Malkin was Attorney Meisel's attending neuro-

oncologist from November 2006 through August 2013, at which time

Dr.   Malkin   relocated   from   Milwaukee   to   Richmond,    Virginia.

Dr. Malkin's report explains Attorney Meisel's medical history.

Dr. Malkin said:

      I am aware, from conversations with Mr. Meisel's
      attorneys, of some of the circumstances surrounding
      the fiscal decisions Mr. Meisel made which have
      resulted in the disciplinary proceedings brought
      against him. I am aware that he missed time from work
      which would have left him with less time and more
      stress to complete the work which he had taken on. I
      am aware that he turned away clients because he could
      not keep up with the case load to which he had been
      accustomed before he became ill. I am aware that his
      practice declined, adding financial burden and stress.
      I am aware that certain real-estate investments were
      devalued, and that he fell out with his partner,
      adding further stress.    I am aware that he did not
      share these concerns at work with his wife, and he
      certainly didn't with me. I am aware that he was not
      willing to seek professional help to manage distress.
      Under these circumstances anybody would have been

                                   10
                                                  No.   2015AP463-D


    overwhelmed, and certainly Mr. Meisel was especially
    susceptible to making errors in judgment as a
    maladaptive strategy to deal with the multiple
    stressors, given his medical history, the medications
    he was on, and the permanent damage to his brain from
    the tumor and treatment thereof.   It was a 'perfect
    storm'. . . .

    All of us are subject to stress, and much of this
    stress is external and beyond our control. Mr. Meisel
    is no different.    However, his brain tumor and the
    treatment   thereof    created   brain   damage   that
    predisposed him to inappropriate, non-constructive
    cognitive responses to stress. I cared for Mr. Meisel
    for almost seven years, and therefore I believe I know
    him quite well.   I believe the behavior that led to
    the inappropriate fiscal decisions that he made was an
    aberration and not likely to repeat itself.       That
    said, it is my recommendation that he undergo a
    comprehensive neuropsychological evaluation, . . .. I
    recommend that he receive formal psychotherapy to help
    him manage stress in a constructive way, . . ..
    Finally, I recommend that Mr. Meisel continue to be
    followed on a scheduled basis by a neuro-oncologist
    with MRI scans of the brain to monitor his brain tumor
    status, . . ..
    ¶17   In his telephone testimony at the evidentiary hearing,

Dr. Malkin said:

    Well, I would sum it up by saying that we have a
    situation here where, beyond the usual stressors in
    anyone's   life,  Mr.   Meisel  was   affected  by   a
    potentially fatal brain tumor, which necessitated
    surgery to remove the tumor and part of the
    surrounding brain, radiation therapy, which affected
    the brain volume and function, chemotherapy, and other
    medications to control symptoms of the brain tumor,
    like seizures, and the stressors, like anxiety and
    depression, are associated with this diagnosis and
    treatment, all of which conspired to create a perfect
    storm such that his injured brain, under extreme
    stress, has reacted to a situation, his judgment was
    affected, and he made a financial decision which I'm
    sure he regrets.



                               11
                                                            No.   2015AP463-D



    ¶18    When asked by Attorney Meisel's counsel whether those

opinions were held to be true to a reasonable degree of medical

probability, Dr. Malkin answered in the affirmative.

    ¶19    On   cross-examination        by   the   OLR's   counsel,     the

following exchange occurred:

    Q:   Can you state to a reasonable degree of medical
    probability that Mr. Meisel's medical conditions
    relating to the brain tumor caused him to repeatedly
    convert trust funds, and reconvert trust funds, over a
    three-year period?

    A:    Yes

    Q:    And what's the basis for that conclusion?

    A: The basis is that the damage we are looking at on
    the MRI scan of 2011 is permanent damage. It's never
    going to change.    It will always look at least that
    bad.   It's a static problem, not one that evolved
    overnight nor one that is ever going to get better.

    So it stands to reason that this impaired brain will
    be susceptible, or predisposed, as I wrote, to making
    the same error in judgment, or memory, or executive
    function over and over again.

    Q:    But being predisposed to doing something is
    different than causing it to happen, right?     They're
    not necessarily the same thing, you testified to?

    A:    Correct.

    Q:   Okay.       So not everyone who is predisposed to
    alcoholism,      for  example,  becomes an   alcoholic,
    correct?

    A:    That's correct.

    Q: So on one hand in your report we talked about the
    predisposed section, and you testified in response to
    Mr. Johnson's question that the – the damage is
    permanent, it's not going to change, but then in the
    last paragraph of your report, the – the fourth
    sentence of the last paragraph on your report you
                                    12
                                             No.   2015AP463-D


state, 'I believe the behavior that led to the
inappropriate fiscal decisions that he made was
aberration and not likely to repeat itself.' Did you
put that statement in your report?

A:   Yes, I did.

Q:   So how can you on one hand tell us that he's
predisposed to engaging in these activities, and has
engaged in these activities, the damage is permanent,
and things are not likely to improve, yet in the next
paragraph you're telling us presumably what you
believe to a medical – high degree of medical
probability, that he's not likely to re-engage in the
same conduct? How do you reconcile that?

A: The reconciliation is based upon the fact that Mr.
Meisel is not under anywhere near the kind of stress
that he was under when these events occurred.     His
tumor is in remission.  It is not impossible that it
won't come back, but it is unlikely.    That's number
one.

As his attorney has just told all of us, his financial
situation is more stable, his child situation is more
stable.   These are important stressors which were in
effect at the time but no longer operable.

And at the time, despite this predisposition, Mr.
Meisel did not avail himself of the kind of support
and professional help that might have prevented him,
given this predisposition, from acting in the way he
did.

Now, if Mr. Meisel didn't do anything about his
stress,   and   ignored   recommendations  to   find
constructive ways to manage stress, then I would say
there would be a concern that it could happen in the
future.

But I think the circumstances of his life now are very
different than they were then. And – and that's how I
would reconcile the two paragraphs.

Q:   But as I understand it, your position that it's
not likely to recur, the behavior – the inappropriate
behavior is not going to recur, is largely based upon
the reduction of stress in Mr. Meisel's life, correct?

                          13
                                                                  No.     2015AP463-D


      A:    That is correct.

      Q:    But –

      A:    I don’t think we should underestimate                          the
      importance of that. I really don't.

      Q: Okay. Accepting that, wouldn't the opposite then
      be true, that if the stress – if the high level of
      stress returned to his life, we should reasonably
      expect that he's predisposed to commit the same
      misconduct that he did previously?

      A: We should be concerned about that risk and do what
      can be done to prevent that.        And that is why I
      recommend   the   neuropsych   evaluation,   to    better
      understand   it,   and   to  objectify   it,    and   the
      psychotherapy intervention.

      Because the stress that comes into our lives is not
      always under our control. Sometimes we bring it upon
      ourselves, but more often than not it's an external
      thing.   And that needs to be managed.    That's the
      missing link in Mr. Meisel's care.
      ¶20    The parties filed post-hearing briefs regarding the

appropriate     sanction.        The    referee      filed   her        report   and

recommendation on July 15, 2016.                  The referee said Attorney

Meisel's     violations   of    supreme      court   rules    were       made    more

egregious because 11 counts involved the guardianship of funds
of orphaned children.          The referee also said the three counts

related to the B.T. estate reflected a serious breach of trust

to   the    estate   beneficiaries     and   to    the   court.      The    referee

acknowledged:

      The confluence of personal and medical matters
      Attorney   Meisel   faced   beginning   in  2006   were
      substantial, life-changing. The long term cognitive
      effects of the brain cancer and treatments are
      balanced sympathetically in favor of Attorney Meisel,
      for misconduct that would otherwise call for a much
      greater   sanction,   especially  because  the   actual

                                       14
                                                                 No.   2015AP463-D


       misconduct did not occur until he returned to active
       practice a couple of years later.

       The misconduct related to sustaining the King Park
       project is not viewed as sympathetically; options in
       handling the business partnership were available and
       the nature of that business deal is not so compelling
       as   to  warrant   much   mitigation   for  substantial
       misconduct    involving     substantial    conversions.
       Additionally, it cannot go without note that Attorney
       Meisel presented his defenses regarding his misconduct
       in matters he handled which affected only these four
       vulnerable people and estates; even while during the
       same time period he carried forth on other client
       matters without engaging in similar misconduct.
       ¶21     As part of her report, the referee discussed in detail

the    American    Bar   Association's      standards   for    imposing    lawyer

sanctions.        With respect to aggravating factors, the referee

found that Attorney Meisel demonstrated a dishonest or selfish

motive since he used converted client funds for his own personal

benefit.       The referee also found a pattern of misconduct in that

Attorney        Meisel's    repeated        conversions       and      unreported

replenishments of the money occurred over a three-year period,

involved four separate matters – two vulnerable wards and two

estates over which he had exclusive control – and eventually

were determined to total more than $175,000.                  The referee noted

that Attorney Meisel's conduct involved multiple offenses.                     She

said    that    Attorney   Meisel   had     substantial   experience      in   the

practice of law, having practiced for almost 15 years when he

first converted funds.

       ¶22     The referee also found a number of mitigating factors,

including Attorney Meisel's lack of a prior disciplinary record;
his significant personal and emotional problems; the fact that


                                       15
                                                                          No.    2015AP463-D



he made full restitution to the clients from which he converted

funds;     the    fact     that     he    was    cooperative        during        the    OLR

proceedings and eventually entered into a stipulation; and the

fact that he expressed remorse for his misconduct.

    ¶23     Although        the     OLR     included           physical     and        mental

disability in its list of mitigating factors, the referee found

that the record did not support placing much weight on those

factors as mitigating the misconduct.                   In the referee's opinion,

Attorney     Meisel      did      not    provide       clear,      satisfactory,         and

convincing evidence of the nexus between his medical condition

and the repeated proactive misconduct of converting client funds

that occurred over the course of several years.

    ¶24     The referee went on to say that although the record

supported the finding that Attorney Meisel had and has mental

health   conditions,        the    record       did    not     establish        that    those

conditions were mental disabilities.                   The referee noted that Dr.

Malkin     ultimately       testified       that       Attorney     Meisel's           health

condition may have predisposed him to less acute judgment and
executive        function,        but     Dr.         Malkin      acknowledged           that

predisposition is not the same as causation.                        Accordingly, the

referee concluded that Dr. Malkin did not satisfactorily draw

the required causal connection between Attorney Meisel's health

issues and his misconduct.                The referee noted that in In re

Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243,

562 N.W.2d 137 (1997), this court said that absent a causal

connection       between    an     attorney's         medical     condition       and    the
attorney's professional misconduct, the medical condition may
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not be considered a factor mitigating either the seriousness of

the misconduct or the severity of the discipline to be imposed

for it.

       ¶25    The referee also noted that even when an attorney has

been able to establish a direct causal connection between a

medical condition and professional misconduct, the fact that the

attorney was apparently able to serve other clients free of

misconduct, as the record shows Attorney Meisel was able to do,

was significant in determining the sanction and the mitigating

effects      of   medical    conditions.         See     In   re     Disciplinary

Proceedings Against Jacobson, 2004 WI 152, ¶79, 277 Wis. 2d 120,

690 N.W.2d 264; In re Disciplinary Proceedings Against Karlsson,

2001 WI 126, ¶48, 248 Wis. 2d 681, 635 N.W.2d 771.

       ¶26    Due to the lack of a causal connection between the

medical condition and the misconduct, the referee found that

Attorney      Meisel    failed   to   present   persuasive     arguments        that

would support a five-month suspension.                  The referee concluded

that   a     two-year   suspension     of    Attorney    Meisel's        license   to
practice law was an appropriate sanction.                 In support of this

recommendation, the referee cited In re Disciplinary Proceedings

Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999); In re

Disciplinary Proceedings Against Edgar (Edgar II), 2003 WI 49,

261 Wis. 2d 413, 661 N.W.2d 817; In re Disciplinary Proceedings

Against Brown, 2012 WI 51, 340 Wis. 2d 527, 814 N.W.2d 172; and

In re Disciplinary Proceedings Against Carter, 2014 WI 126, 359

Wis. 2d 70, 856 N.W.2d 595.


                                        17
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      ¶27    The referee noted that the law licenses of Brown and

Edgar were suspended for two years, and Carter's license was

suspended for three years.           All three cases involved conversion

of   funds   and   comingling   of    trust   and   personal   funds   to   pay

personal expenses.       The amounts of the conversions in those

cases were significantly less than at issue here, with the Edgar

case involving about $11,000, Brown $13,000, and Carter $75,000.

The referee noted that as in Carter, Attorney Meisel entered

into a stipulation to resolve the matter.              She also noted that

Attorney Meisel has made restitution and returned the converted

funds.

      ¶28    In addition to concluding that a two-year suspension,

was appropriate, the referee also recommended the imposition of

the following conditions upon Attorney Meisel:

      (1) demonstration that he has his medical conditions
      and stress and any other emotional or psychological
      problems   under   control, by   his   submission  of
      documentation of fitness pursuant to a medical
      examination by a health provider approved by the OLR,
      at his own expense;

      (2) that he remain in treatment as recommended by his
      treating physician and obtain evaluations and neuro-
      oncologist monitoring pursuant to the written medical
      report included in the record as Exhibit 117 and via
      trial testimony, and that his medical treatment be
      monitored by the OLR via submission of quarterly
      reports for a period of two years following his
      reinstatement;

      (3) that his practice of law be monitored by an
      attorney approved by OLR for a period of two years
      following reinstatement, unless he is either employed
      by a law firm, corporate office or practicing with
      another attorney aware of his disciplinary and medical
      history;

                                       18
                                                                  No.   2015AP463-D


    (4) that he obtain six Continuing Legal Education
    credits in trust account and/or law office management,
    and six Continuing Legal Education credits in business
    and professional conflict of interest, to be approved
    by OLR and monitored by OLR for compliance.


    ¶29     Attorney Meisel's appeal raises three issues:

    1. Did Attorney Meisel present clear, convincing, and
    satisfactory evidence of a causal connection between
    Attorney    Meisel’s  medical   condition   and   his
    misconduct?

    2. Did the aggravating factors of Attorney Meisel’s
    conduct weigh more heavily than the mitigating
    factors?

    3. Is a two-year suspension disproportionate for the
    alleged offenses?



    ¶30     Attorney    Meisel    argues       that   his   testimony     at   the

evidentiary hearing, combined with the testimony of Dr. Malkin,

presented     clear,   convincing       and     satisfactory      evidence     that

Attorney Meisel's medical condition caused him to engage in the

misconduct.      He    argues    that    the     referee    erroneously      found

otherwise.

    ¶31     Attorney    Meisel    further       argues     that   the   referee's

finding that the aggravating factors in this case weigh more

heavily than the mitigating factors is not supported either by

the record or by applicable case law.                    He asserts there is

simply no evidence to support any contention that his actions

were made with a selfish motive.              He asserts that the mitigating

factors in this case far outweigh any aggravating factors and he



                                        19
                                                                     No.    2015AP463-D



says the contrary conclusion of the referee is based on mere

speculation.

      ¶32    Attorney     Meisel       also     argues      that     the    referee's

recommendation of a two-year suspension is disproportionate to

the   allegations   of    misconduct.           Attorney     Meisel    acknowledges

that what he did was wrong, but he notes that the actions were

taken during a very bad time in his life when he was undergoing

very stressful situations involving his health and his family.

He says his contrition, his appreciation of the error of his

ways, and his understanding of what he needs to do to return to

being   a    productive      member     of    the   bar    were     evident    in   his

testimony at the evidentiary hearing.

      ¶33    Attorney Meisel acknowledges that one factor the court

considers when assessing the appropriate level of discipline to

impose is the need to deter other attorneys from engaging in

similar misconduct.          He says not only are the unique medical,

personal, emotional, and financial circumstances that led to the

series of terrible, stupid mistakes he made extremely unlikely
to ever be repeated by any other attorney, the experience which

he has already gone through will strongly motivate him to avoid

any   such   conduct    in    the   future.         He    asserts    that     no   other

attorney is ever going to be placed in the same situation he was

and in the extremely unlikely event someone was placed in a

similar      situation,         that         attorney's      impaired         judgment

capabilities    would     not    make    it     possible    to     fully    take    into

account the circumstances and discipline imposed in this case.


                                         20
                                                                   No.     2015AP463-D



       ¶34    Attorney     Meisel     argues      that    when   viewed      in    its

entirety, the appropriate sanction for his misconduct would be a

suspension of no more than five months.                     Attorney Meisel notes

that the difference between a five-month suspension and a six-

month suspension is significant since, pursuant to SCR 22.28,

suspensions of less then six months permit reinstatement upon

application     and    execution      of   documents      indicating       compliance

with    the    requirements      of    the       suspension.          By   contrast,

suspensions of six months or more require the attorney to file a

petition for reinstatement and go through a full reinstatement

proceeding, which can add as much as one to two years on to the

suspension.

       ¶35    Attorney Meisel argues that the decision in Jacobson

should guide this court in its analysis of the case.                         Attorney

Jacobson received a five-month suspension for multiple counts of

misconduct, which included failure to communicate with clients

and keep them informed; trust account discrepancies; misuse of

client funds; and misrepresentation to and failure to cooperate
with the OLR.          The referee in that case found that Attorney

Jacobson's ongoing depression was the cause of the misconduct

that   led    to    the    disciplinary         proceedings.      A    psychiatrist

testified at Attorney Jacobson's evidentiary hearing that, to a

reasonable degree of medical probability, there was a direct

relationship        between   Attorney       Jacobson's      depression      and   his

misconduct.

       ¶36    The    OLR   argues     that       Attorney     Meisel's     egregious
misconduct involving conversions in excess of $175,000 over a
                                           21
                                                                             No.       2015AP463-D



three-year period warrants a two-year suspension of his license

to    practice       law.        According       to    the     OLR,      Attorney          Meisel's

misconduct more closely approaches the standards for revocation,

and it says the minimally appropriate discipline in this case

should be a very lengthy suspension.

       ¶37    As     to     Attorney          Meisel's       claim       that        Dr.     Malkin

established a causal connection between Attorney Meisel's health

issues and his misconduct, the OLR says that Dr. Malkin wrote in

his   expert       report       and    said    in     testimony       at    the      evidentiary

hearing      initially         consistent       with     the    report,       that         Attorney

Meisel's health condition may have predisposed Attorney Meisel

to less acute judgment and executive function.                                  The OLR says

Dr. Malkin then dramatically detoured from his report in his

hearing testimony and opined that the medical issues actually

caused Attorney Meisel's three year pattern of misconduct.                                       The

OLR    says    in       attempting      to     justify       that     opinion         on     cross-

examination, Dr. Malkin apparently recognized the dearth of any

medical basis to support it and promptly retreated to his theory
of predisposition, not causation.

       ¶38    The     OLR      notes    that     in    her     findings         of    fact,      the

referee      found      that    Dr.    Malkin        clarified      on     cross-examination

that his ultimate opinion was that Attorney Meisel was merely

predisposed        to     bad    decision       making       and    the     doctor         did   not

provide testimony of a causal relationship between the medical

condition and the conversions.                       The OLR asserts the referee's

findings of fact are supported by Dr. Malkin's own testimony and
should be upheld by this court.
                                                22
                                                                             No.        2015AP463-D



    ¶39     The       OLR     argues         that     Attorney         Meisel's          proposed

discipline      of    a     suspension        of    less       than    six     months          would

undermine multiple goals of attorney                           discipline,        particularly

recognition of the seriousness of the misconduct and the need to

deter other attorneys from engaging in similar misconduct.                                      The

OLR says the referee appropriately cited the Edgar, Brown, and

Carter   cases        as    support      for    the       imposition         of    a     two-year

suspension      of     Attorney        Meisel's          law    license.           As     to     the

conditions recommended by the referee, the OLR says they all

relate     to    appropriate           reinstatement           concerns       and        the    OLR

suggests that this court refrain from ordering the conditions as

part of the disciplinary case and rather allow the particulars

of appropriate treatment and monitoring to be addressed in the

context of a future formal reinstatement proceeding.

    ¶40     A    referee's        findings          of    fact    are    affirmed          unless

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.                           The court may impose
whatever    sanction         it   sees       fit,    regardless         of    the       referee's

recommendation.             See   In    re     Disciplinary           Proceedings         Against

Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

    ¶41     After careful review of the matter, we conclude there

has been no showing that any of the referee's findings of fact,

including her finding that Dr. Malkin did not provide testimony

showing a causal relationship between Attorney Meisel's medical

condition       and    the    conversions,           are       clearly       erroneous          and,
accordingly, we adopt them.                  We further agree with the referee's
                                               23
                                                           No.   2015AP463-D



conclusions of law that Attorney Meisel            violated all of the

supreme court rules set forth above.

      ¶42   Turning to the question of the appropriate sanction,

the four primary goals of attorney discipline are to address the

seriousness of the misconduct; to protect the public, courts,

and the legal system from repetition of misconduct; to impress

upon the attorney the seriousness of the misconduct; and to

deter other attorneys from engaging in similar misconduct.              See

In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78,

279   Wis. 2d     583,    694    N.W.2d 910.     Both    aggravating    and

mitigating      factors    may    be    taken   into    consideration    in

determining the appropriate sanction for attorney misconduct.

      ¶43   We disagree with Attorney Meisel's claim that there is

no evidence in the record to support a finding that his actions

were made with a selfish motive or to gain advantage.               In the

referee's words:

      Attorney Meisel used converted client funds for his
      own personal benefit, including but not limited to
      sustaining King Park, even though his business partner
      was not pressuring him to maintain payments. Further,
      Attorney Meisel camouflaged his conversions replacing
      converted funds with those converted from other client
      funds and by mingling personal funds and law firm
      funds.   The timing of the conversions was deliberate
      and, with respect to the guardianships, often very
      close   to   accounting   time   frames.     The   actual
      conversions    further   demonstrated   dishonesty   when
      Attorney Meisel further concealed his misconduct by
      filing falsified annual accountings with the Milwaukee
      County   Probate   Court   that   intentionally   omitted
      disclosure of the converted and replenished fund
      transactions.



                                       24
                                                                            No.     2015AP463-D



       ¶44   We    find           that    the     record       supports     the     referee's

conclusions.            We    also       agree   with    the     referee     that    Attorney

Meisel's     repeated          conversions         and    unreported        replenishments,

which occurred over a three-year period, involved four separate

matters, and totaled more than $175,000, evidenced a pattern of

misconduct.        We also share the referee's concern that Attorney

Meisel converted funds from vulnerable victims.                               All of these

are aggravating factors.

       ¶45   We agree that this case also presents a number of

mitigating factors.               Specifically, we agree with Attorney Meisel

that   his   medical          condition         and   other     personal     and    financial

issues do constitute mitigating factors.                            We view Dr. Malkin's

characterization             of     the    multiple      stressors        facing     Attorney

Meisel as being a "perfect storm" as being an apt description of

the situation in which Attorney Meisel found himself.

       ¶46   Although          we    agree       with    the    referee     that     Attorney

Meisel failed to prove that his medical condition caused his

professional       misconduct,            the    referee      and   the   OLR     acknowledge
that Dr. Malkin opined that the medical condition may have pre-

disposed Attorney Meisel to less acute judgment.

       ¶47   We noted in Sosnay that absent a causal connection

between an attorney's psychological condition and professional

misconduct        the        referee      properly       declined      to    consider      the

psychological condition in mitigation either of the seriousness

of the misconduct or the severity of the discipline warranted.

In the instant case, however, the OLR concedes that Attorney


                                                 25
                                                                                  No.   2015AP463-D



Meisel's      serious      medical         condition         should          be    considered     a

mitigating factor.           In its appellate brief, the OLR said:

       Despite the absence of the required causal connection
       between    Meisel's  medical   condition   and    his
       misconduct . . . OLR does not contest that Meisel's
       health issues contributed to increased stress on his
       everyday life.
       ¶48    In addition, although the referee found the record

did    not   support       placing        "much      weight"       on    Attorney        Meisel's

medical      issues,      she       did    agree      that,     "[t]he            confluence    of
personal      and     medical        matters . . . were                 substantial,          life-

changing" and the long term effects of Attorney Meisel's medical

condition were "balanced sympathetically" in his favor.

       ¶49   We agree with the OLR and the referee that the unique

medical and personal issues facing Attorney Meisel should be

considered mitigating factors.                    We also agree with the OLR and

the referee that absent those medical and personal issues a very

lengthy suspension, or perhaps even revocation, would be under

consideration.            Although        no   two    disciplinary            proceedings       are

ever     identical,       this      court      does,     to     the          extent     possible,

endeavor     to     impose      a    similar         level    of    discipline           in    fact

situations     that       are     somewhat      analogous.              In    support     of    his

argument     that     a    two-year        suspension         is    excessive,           Attorney

Meisel    notes     that     in     In    re   Disciplinary             Proceedings       Against

MacLean, 2016 WI 45, 369 Wis. 2d 59, 879 N.W.2d 767, an attorney

who intentionally misappropriated over $450,000 received a two-

year suspension.          Although we find that the clients in this case
were more vulnerable than the client in MacLean, the amount of


                                               26
                                                               No.   2015AP463-D



the conversions in this case is less than half of the amount

converted    in    MacLean.      After       careful   consideration    of    the

aggravating and mitigating factors present in this case, we deem

it appropriate to impose a lesser suspension in this case than

was imposed in MacLean and find it appropriate to impose an 18-

month suspension of Attorney Meisel's license to practice law in

Wisconsin.

    ¶50     We agree with the OLR that it would be premature to

develop conditions for Attorney Meisel's reinstatement at this

juncture.    We find that the issue of conditions would be best

addressed in the context of a future reinstatement proceeding.

Since Attorney Meisel has already made full restitution of all

converted funds, no restitution award is sought.                     As is our

general   practice,      we   agree     that   Attorney   Meisel     should   be

required to pay the full costs of this disciplinary proceeding.

    ¶51     IT    IS   ORDERED   that    the    license   of   Christopher    E.

Meisel to practice law in Wisconsin is suspended for a period of

18 months, effective June 7, 2017.
    ¶52     IT IS FURTHER ORDERED that Christopher E. Meisel shall

comply with the provisions of SCR 22.26 concerning the duties of

a person whose license to practice law in Wisconsin has been

suspended.

    ¶53     IT IS FURTHER ORDERED that within 60 days of the date

of this order, Christopher E. Meisel pay to the Office of Lawyer

Regulation the costs of this proceeding, which are $10,831.67.

If the costs are not paid within the time specified, and absent
a showing to this court of his inability to pay the costs within
                                        27
                                                      No.   2015AP463-D



that time, the license of Christopher E. Meisel to practice law

in Wisconsin, shall remain suspended until further order of the

court.

    ¶54   IT   IS   FURTHER   ORDERED   that   compliance   with   all

conditions of this order is required for reinstatement.            See

SCR 22.29(4)(c).




                                 28
                                                                    No.   2015AP463-D.ssa




    ¶55     SHIRLEY    S.    ABRAHAMSON,       J.        (dissenting).         Attorney

Meisel has had more than his share of medical problems and has

obviously    suffered       immensely.         I    could      go   along     with   the

referee's recommendation of a two-year suspension.                          The referee

already considered mitigating factors.                     In In re Disciplinary

Proceedings    Against       Sosnay,     209       Wis. 2d 241,       562    N.W.2d 137

(1997), this court said that absent a causal connection between

an attorney's medical condition and the attorney's professional

misconduct, the medical condition may not be considered a factor

mitigating    either    the    seriousness          of   the    misconduct      or   the

severity of the discipline to be imposed for it.                      The per curiam

opinion undermines Sosnay.         I am unwilling to do that.                   What is

left of Sosnay?        Lawyers, the OLR, and referees ought to know

what factors are mitigating factors.




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