                                                              2015 WI 96

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:               2013AP2742-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Thomas O. Mulligan, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant-Respondent,
                             v.
                        Thomas O. Mulligan,
                                  Respondent-Appellant.

                           DISCIPLINARY PROCEEDINGS AGAINST MULLIGAN

OPINION FILED:          October 8, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           ABRAHAMSON, J., concurs. (Opinion filed.)
   DISSENTED:
   NOT PARTICIPATING:   BRADLEY, ZIEGLER, J.J., did not participate.

ATTORNEYS:
                                                                           2015 WI 96
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2013AP2742-D


STATE OF WISCONSIN                               :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Thomas O. Mulligan, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
             Complainant-Respondent,
                                                                    OCT 8, 2015
      v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Thomas O. Mulligan,

             Respondent-Appellant.




      ATTORNEY      disciplinary     proceeding.           Attorney's          license

suspended.



      ¶1     PER CURIAM.     Attorney Thomas O. Mulligan appeals a

report     filed   by   Referee   Robert    E.       Kinney,      concluding        that

Attorney     Mulligan     engaged   in     professional            misconduct        and

recommending that this court suspend his license to practice law

in Wisconsin for a period of 18 months, order Attorney Mulligan

to make restitution to a client, and impose full costs, which

total $17,720.02 as of May 12, 2015.                 Attorney Mulligan asserts
                                                                              No.        2013AP2742-D



that his admitted ethical violations are de minimus and do not

warrant restitution, license suspension, or full costs.

       ¶2        Having       considered       the    referee's          report              and     the

parties' briefs and oral argument on appeal, we conclude that

the    referee's            relevant    findings      of    fact        are     supported            by

satisfactory           and     convincing          evidence       and     we        accept           his

conclusion that Attorney Mulligan committed the eight counts of

misconduct alleged in the Office of Lawyer Regulation's (OLR)

complaint.             We    conclude,       however,      that    Attorney              Mulligan's

misconduct warrants a nine-month suspension of his license to

practice law in this state, and we direct Attorney Mulligan to

attend      a    trust       account    seminar      and,     upon      reinstatement,                to

submit      to    trust       account       monitoring.         We      decline           to       order

restitution to R.W. for the reasons stated herein.                                   Finally, we

impose the full costs of this proceeding on Attorney Mulligan.

       ¶3        Attorney      Mulligan      was     licensed      to    practice              law    in

Wisconsin         in    1985.          He    lives    and     practices             in       Spooner,

Wisconsin, where he is a general practitioner.
       ¶4        Attorney Mulligan has previously been disciplined for

misconduct.            In     1997,    Attorney      Mulligan        received            a    private

reprimand for failing to properly communicate with his client,

failing to return a client's file, failing to refund unearned

fees     upon      termination          of    representation,            and        failing           to

communicate the basis or rate of his fee within a reasonable

time   after       commencing         the    representation.            Private           Reprimand

No. 1997-25.            In     2005,    Attorney      Mulligan       received            a     private
reprimand for failing to timely refund an advanced payment of a
                                                2
                                                                                      No.     2013AP2742-D



fee that had not been earned.                             Private Reprimand No. 2005-10.

In   2009,       Attorney         Mulligan          received         a     public      reprimand        for

failing         to    consult       with      his    client          regarding        his     intent      to

proceed with an appeal without obtaining trial transcripts and

failing to consult with his client regarding his decision to

seek    only           de        novo      review         of         a     contract.               In     re

Disciplinary Proceedings Against Attorney Mulligan, 2009 WI 12,

315 Wis. 2d 605, 759 N.W.2d 766.

       ¶5        The       OLR    filed       the    complaint             giving      rise       to    this

proceeding            on    December         12,     2013,      alleging            eight     counts      of

professional           misconduct          committed           in        two   client       matters     and

trust account anomalies.                      Attorney Mulligan retained counsel and

filed an answer.                  Referee Kinney was appointed.                             The parties

filed       a    comprehensive             stipulation           of        facts.           The   referee

conducted a one-day hearing in July 2014, and both parties filed

post-hearing               briefs       and        proposed          findings         of      fact       and

conclusions            of    law.            The     referee         issued         his     report      and

recommendation on October 24, 2014. This appeal followed.                                               The
court heard oral argument on April 22, 2015.

       ¶6        When reviewing a referee's report and recommendation,

we affirm the referee's findings of fact unless they are clearly

erroneous.             In    re     Disciplinary           Proceedings              Against       Inglimo,

2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125.                                          We review the

referee's            conclusions        of     law    de       novo.           In    re     Disciplinary

Proceedings           Against       Alia,      2006       WI    12,        ¶39,     288     Wis.2d      299,

709 N.W.2d 399.                   We     determine             the        appropriate         level      of
discipline to impose given the particular facts of each case,
                                                      3
                                                                  No.    2013AP2742-D



independent        of     the    referee's   recommendation,     but    benefitting

from    it.         In     re    Disciplinary    Proceedings    Against      Widule,

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

       R.W. Matter

       ¶7     Attorney Mulligan does not contest that he committed

the misconduct alleged in connection with his representation of

R.W. but deems the infractions de minimus.                     The facts will be

summarized because the admitted misconduct is relevant to our

assessment of appropriate discipline and because the referee's

evaluation of this matter will require some discussion when we

assess discipline.

       ¶8     R.W. was a teen with drug and alcohol issues who faced

81     criminal          charges    in    Washburn    and     Burnett     Counties,

consolidated into one Washburn County case filed on January 8,

2008.         In     July       2008,    Attorney    Mulligan    assumed      R.W.'s

representation.             No     fee   agreement   was    executed.        At   the

beginning of Attorney Mulligan's representation, R.W.'s father

gave Attorney Mulligan a $5,000 check.                      This initial $5,000
payment was deposited into Attorney Mulligan's business account

rather than his trust account.

       ¶9     The       district    attorney     sought    forfeiture   of    R.W.'s

entire $10,000 bond for bail jumping, but eventually agreed to

release $5,000 to Attorney Mulligan's trust account in return

for a $5,000 forfeiture to Washburn County.                  The Washburn County

Clerk of Court issued a $5,000 check to Attorney Mulligan's

trust account; it was deposited on January 13, 2009.                       Attorney


                                             4
                                                             No.    2013AP2742-D



Mulligan and R.W. agreed that Attorney Mulligan was to deposit

$500 from the $5,000 refund into R.W.'s county jail account.

     ¶10    On January 14, 2009, Attorney Mulligan transferred the

$5,000 in refunded bail money from his trust account to his

business    account.      Two   weeks     later,    on   January    29,   2009,

Attorney Mulligan mailed a $500 check to R.W.'s county jail

account.    R.W. later requested an accounting.            No accounting was

provided until R.W. threatened to file a grievance.

     ¶11    The   OLR's   complaint       alleged   that    "[b]y    accepting

$5,000 to represent [R.W.] in numerous criminal matters, and

failing to enter into a written fee agreement with [R.W.] or

[his father], [Attorney] Mulligan violated [Supreme Court Rule

(SCR)] 20:1.5(b)(1) and (2)"1 (Count One).


     1
         SCR 20:1.5(b)(1) and (2) provide:

          (1) The scope of the representation and the basis
     or rate of the fee and expenses for which the client
     will be responsible shall be communicated to the
     client in writing, before or within a reasonable time
     after commencing the representation, except when the
     lawyer will charge a regularly represented client on
     the same basis or rate as in the past.       If it is
     reasonably   foreseeable  that  the   total   cost  of
     representation to the client, including attorney's
     fees, will be $1000 or less, the communication may be
     oral or in writing. Any changes in the basis or rate
     of the fee or expenses shall also be communicated in
     writing to the client.

          (2) If the total cost of representation to the
     client, including attorney's fees, is more than $1000,
     the purpose and effect of any retainer or advance fee
     that is paid to the lawyer shall be communicated in
     writing.


                                      5
                                                           No.    2013AP2742-D



     ¶12    The complaint alleged further that "[b]y failing to

deposit the initial $5,000 advanced fee payment into his trust

account, without providing the written notices required under

SCR 20:1.15(b)(4m) or otherwise indicating a proper basis or

intent     to   utilize   the   alternative    advanced    fee     placement

measures    stated   in   SCR   20:1.15(b)(4m),      [Attorney]     Mulligan

violated SCR 20:1.15(b)(4)"2 (Count Two).

     ¶13    The complaint alleged further that "[b]y withdrawing

$5,000 bail return money from his trust account and promptly

transferring the funds into his general account, when $500 of

that amount belonged to [R.W.], pursuant to a written agreement,

[Attorney] Mulligan violated SCR 20:1.15(b)(l)"3 (Count Three).

     ¶14    Again,   Attorney    Mulligan     does   not   contest     these

charges and we accept the referee's conclusion that Attorney



     2
         SCR 20:1.15(b)(4) provides:

          Except as provided in par. (4m), unearned fees
     and advanced payments of fees shall be held in trust
     until earned by the lawyer, and withdrawn pursuant to
     sub. (g). Funds advanced by a client or 3rd party for
     payment of costs shall be held in trust until the
     costs are incurred.
     3
         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.


                                    6
                                                                             No.     2013AP2742-D



Mulligan    committed            the    misconduct,      as     alleged,      in     connection

with the matter of R.W.

    A.B. Matter

    ¶15     Attorney          Mulligan         does    not     contest       the     misconduct

alleged in connection with his representation of A.B. but deems

the infractions de minimus.

    ¶16     In       September         2009,    A.B.    hired       Attorney       Mulligan       to

represent       her    in     a    divorce.           The     parties       executed        a    fee

agreement dated September 23, 2009.                      A.B. gave Attorney Mulligan

$1,750     on        September         24,     2009,     as     an        advanced     fee       in

contemplation of future legal services.

    ¶17     Attorney Mulligan did not place the advanced fee into

his trust account; the fee agreement did not contain the notices

required    under       SCR       20:1.15(b)(4m)         that       would    allow     for      the

placement       of    the     advanced         fee    into     an    account        other       than

Attorney Mulligan's trust account.

    ¶18     The       OLR's       complaint      alleged       that       "[b]y     failing       to

deposit [A.B.'s] advanced fee payment into his trust account
without     providing             the        written        notices         required        under

SCR 20:1.15(b)(4m)           or    otherwise          indicating      a     proper    basis       or

intent     to    utilize          the    alternative          advanced        fee     placement

measures    stated          in     SCR       20:1.15(b)(4m),         [Attorney]        Mulligan

violated SCR 20:1.15(b)(4)" (Count Four).

    ¶19     Again, Attorney Mulligan does not contest this charge

and we accept the referee's conclusion that he committed the

misconduct as alleged.


                                                 7
                                                                           No.     2013AP2742-D



       Trust Account Anomalies

       ¶20       Attorney Mulligan does not dispute that he violated

certain trust account rules.                    He does dispute that he committed

misconduct in violation of SCR 20:8.4(c),4 as alleged in Count

Six of the OLR's complaint.

       ¶21       During     the    OLR's      investigation,         the   OLR    discovered

systemic trust account anomalies.                      On December 1, 2011, the OLR

sent Attorney Mulligan a letter requesting copies of his trust

account      records      for      the   years       2008   through       2011,   inclusive.

Attorney         Mulligan      provided       the    requested      copies    but    did   not

provide       client      ledgers        or    monthly      reconciliation        statements

because he did not maintain them.                           Attorney Mulligan's check

stubs did not show a running balance, did not show the source

for all deposits, and did not consistently show the identity of

the client for whom funds were deposited or disbursed.

       ¶22       The     OLR      reconstructed         Attorney       Mulligan's         trust

account and, according to the complaint, between December 17,

2007 and December 31, 2011, Attorney Mulligan and his wife, the
only       authorized      signatories         to    the    trust    account,       deposited

personal         funds    totaling        $45,380.57        into    the    trust     account.

During the same period, Attorney Mulligan disbursed $54,869.01

from       the    trust     account      for     personal      obligations,         including

income        taxes,       property           taxes,     and       attorney       fees.    The


       4
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                                 8
                                                                          No.     2013AP2742-D



disbursements from Attorney Mulligan's trust account included

some       $6,593      in     cash    withdrawals,          which       are     specifically

prohibited by SCR 20:1.15(e)(4)a.

       ¶23    The       opening      balance       of     Attorney      Mulligan's     trust

account in December 2007 was $2,774.88.                         Assuming some of these

funds       may     have        belonged     to         Attorney       Mulligan,     between

December 17,           2007   and    December       31,     2011,      Attorney     Mulligan

disbursed from his trust account at least $6,313.56 and as much

as $9,088.44 more for personal matters than he had on deposit

during this time period.

       ¶24    The       OLR's    complaint        alleged       that    "[b]y     depositing

$45,380.57        of    personal     funds     into       his   trust    account     between

December 17, 2007 and December 31, 2011, thereby commingling

personal      funds      with    trust     account       funds,     [Attorney]      Mulligan

violated SCR 20:1.15(b)(3)"5 (Count Five).

       ¶25    The complaint alleged further:

            By disbursing from his trust account, and by
       allowing his wife to make disbursements from his trust
       account, totaling at least $6,713.56 and as much as
       $9,488.446 more for personal matters than he had on

       5
       SCR 20:1.15(b)(3) provides that "[n]o 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."
       6
       It was later confirmed by an OLR investigator that the
figures used in the complaint ($6,713.56 and $9,488.44) were
incorrect. The referee subsequently also used these figures in
parts of his report.       It is undisputed that this is a
typographical error on the referee's part. The correct numbers
are $6,313.56 and $9,088.44.


                                               9
                                                         No.    2013AP2742-D


     deposit between December 17, 2007 and December 31,
     2011, [Attorney] Mulligan failed to hold in trust and
     converted a net total of between $6,713.56 and
     $9,488.44 of client or third party funds for his
     personal use; and by disbursing funds for personal
     matters on numerous occasions when he did not have
     sufficient personal funds on deposit in the trust
     account   to  cover   such   disbursements, [Attorney]
     Mulligan violated [] SCR 20:1.15(b)(1), and current
     SCR 20:8.4(c) [(Count Six)].
     ¶26    The complaint alleged further that "[b]y failing to

maintain    a   complete    transaction   register,   subsidiary    client

ledgers,    and   monthly     reconciliation   statements,      [Attorney]

Mulligan violated the trust account record keeping requirements

of SCR 20:1.15(f)(1)"7 (Count Seven).
     7
         SCR 20:1.15(f)(1) provides:

          Complete records of a trust account that is a
     draft account shall include a transaction register;
     individual client ledgers for IOLTA accounts and other
     pooled trust accounts; a ledger for account fees and
     charges, if law firm funds are held in the account
     pursuant to sub. (b)(3); deposit records; disbursement
     records;   monthly   statements;   and   reconciliation
     reports, subject to all of the following:

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

            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
                                                               (continued)
                                    10
                                                    No.    2013AP2742-D




     5. the    balance   in        the   account   after    each
transaction.

     b. Individual client ledgers.       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.

     c. Ledger for account fees and charges.         A
subsidiary ledger shall be maintained for funds of the
lawyer deposited in the trust account to accommodate
monthly service charges. Each deposit and expenditure
of the lawyer's funds in the account and the balance
following each transaction shall be identified in the
ledger.

     d. Deposit records. Deposit slips shall identify
the name of the lawyer or law firm, and the name of
the account.    The deposit slip shall identify the
amount of each deposit item, the client or matter
associated with each deposit item, and the date of the
deposit.    The lawyer shall maintain a copy or
duplicate of each deposit slip. All deposits shall be
made intact. No cash, or other form of disbursement,
shall be deducted from a deposit.    Deposits of wired
funds shall be documented in the account's monthly
statement.

    e. Disbursement records.

     1. Checks. Checks shall be pre-printed and pre-
numbered.   The name and address of the lawyer or law
firm, and the name of the account shall be printed in
the upper left corner of the check.      Trust account
checks shall include the words "Client Account," or
"Trust Account," or words of similar import in the
account name.    Each check disbursed from the trust
account shall identify the client matter and the
reason for the disbursement on the memo line.
                                                (continued)
                              11
                                            No.   2013AP2742-D




     2. Canceled checks.     Canceled checks shall be
obtained from the financial institution.        Imaged
checks may be substituted for canceled checks.

     3. Imaged checks.       Imaged checks shall be
acceptable if they provide both the front and reverse
of the check and comply with the requirements of this
paragraph.   The information contained on the reverse
side   of  the   imaged   checks  shall   include  any
endorsement signatures or stamps, account numbers, and
transaction dates that appear on the original. Imaged
checks shall be of sufficient size to be readable
without magnification and as close as possible to the
size of the original check.

     4. Wire transfers.     Wire transfers shall be
documented by a written withdrawal authorization or
other documentation, such as a monthly statement of
the account that indicates the date of the transfer,
the payee, and the amount.

     f. Monthly statement.      The monthly statement
provided to the lawyer or law firm by the financial
institution shall identify the name and address of the
lawyer or law firm and the name of the account.

     g. Reconciliation reports.       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
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
                                               (continued)
                          12
                                                                         No.   2013AP2742-D



       ¶27      Finally, the complaint alleged that "[b]y making the

cash disbursements totaling $6,593.00 from the trust account,

[Attorney] Mulligan violated SCR 20:1.15(e)(4)a."8 (Count Eight).

       ¶28      Attorney    Mulligan       does    not    contest        the   violations

alleged in Counts Five, Seven, and Eight, and we accept the

referee's        conclusion       that    Attorney       Mulligan        committed       this

misconduct, as alleged.              However, Attorney Mulligan challenges

the referee's conclusion that he violated SCR 20:8.4(c) (Count

Six).

       ¶29      Attorney    Mulligan     asserts     that     his    conduct       did    not

involve dishonesty, fraud, deceit, or misrepresentation and thus

did not violate SCR 20:8.4(c).                   Attorney Mulligan argues that:

(1) there is no evidence of any intentional cover up of personal

expenditures;        (2)    "no    clients       complained       that    they     did    not

receive funds they were entitled to from Attorney Mulligan;"

(3) "OLR provided no specific evidence regarding the conversion

of   any       particular   client       funds;"    and     (4)     Attorney     Mulligan

personally engaged in a good faith effort to always ensure that
sufficient personal funds were available for payment of personal

expenses from the trust account.                    Attorney Mulligan seeks to

distinguish his conduct from cases in which this court has ruled

that       a   lawyer   violated     SCR     20:8.4(c).           See,     e.g.,     In    re

       subtracting outstanding checks and other                          deductions
       from the balance in the monthly statement.
       8
       SCR 20:1.15(e)(4)a. provides that "[n]o disbursement of
cash shall be made from a trust account or from a deposit to a
trust account, and no check shall be made payable to 'Cash.'"


                                            13
                                                                             No.        2013AP2742-D



Disciplinary        Proceedings          Against        Carroll,      2001    WI        130,    ¶15,

248 Wis.      2d    662,     636     N.W.2d       718    (lawyer      set    in     motion      the

fraudulent         conduct    in     violation          of    SCR 20:8.4(c));            see    also

In re Disciplinary Proceedings Against Usow, 214 Wis. 2d 596,

600-01,      571    N.W.2d     162       (1997)     (attorney        submitted          accounting

that "contained duplicative, speculative and inflated charges"

due    to    carelessness,          neglect,        and       his   failure        to     properly

supervise office staff).

       ¶30    A lawyer must hold the property of others with the

care     required      of      a     professional             fiduciary.            SCR 20:1.15

(Wisconsin         Comment).         A    finding        of    wrongful      intent        is   not

necessary to prove a violation of SCR 20:8.4(c).                              A violation of

SCR 20:8.4(c) can be based on an attorney's "carelessness and

neglect."           See,     e.g.,        Carroll,           248    Wis.    2d     662;        Usow,

214 Wis. 2d 596.             Similarly, an attorney's claim of good faith

does not preclude a determination of misconduct in violation of

SCR    20:8.4(c).            See,    e.g.,        In    re     Disciplinary         Proceedings

Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999).
       ¶31    The referee was not convinced by Attorney Mulligan's

reasoning that he did not commit misconduct in violation of

SCR 20:8.4(c) because "no clients complained that they did not

receive funds they were entitled to from Attorney Mulligan."                                      At

the    evidentiary         hearing,         Attorney          Mulligan       was        questioned

extensively about specific "unaccounted-for" balances on various

client       accounts.              Attorney        Mulligan         asserted           that     the

"unaccounted-for" balances existing at year-end were fees earned
by him.      The OLR trust account investigator was asked about the
                                               14
                                                                No.   2013AP2742-D



client ledger, noting that many of those client ledgers result

in a zero balance.

       Q Just based on those numbers, is it true that there
       was ample unaccounted for client funds in trust to
       cover    the  personal   expenditure    overage   by
       Mr. Mulligan?

       A   Yes.
       ¶32   The   referee    was   troubled   by   a   bookkeeping     strategy

that   basically     deemed    anything     left    over   as    "fees."      The

evidence supports the referee's findings that Attorney Mulligan
not only comingled his own money with client funds, but also

used client funds for his own purposes.                 The referee explained

it well:

       It may well be, once again giving [Attorney Mulligan]
       the benefit of the doubt, that [Attorney] Mulligan did
       not know whose funds he was withdrawing. The record
       clearly shows, however, that the money he withdrew was
       not all his own.   It is not seriously contested that
       he withdrew more money than the personal money he
       deposited.   It is not necessary for the OLR to prove
       whose money he withdrew on any given day. We know the
       list of possibilities.       . . . .   That [Attorney
       Mulligan] permitted this situation to exist is a sad
       state of affairs, and it is one for which he is
       answerable in this proceeding.
(Emphasis added.)      The referee explained why this is wrong:

       The problem is that "inadequate trust account records"
       are themselves a form of wrongdoing. The seriousness
       of such wrongdoing is highlighted by the facts of this
       case. Under the circumstances, to the extent there is
       any lack of clarity, it is entirely the responsibility
       of [Attorney Mulligan].




                                       15
                                                                 No.    2013AP2742-D



       ¶33   Comingling funds is not a trivial or technical rule

violation.      The Law of Lawyering, Third Addition, Geoffrey C.

Hazard, Jr., 2014 Supplement, at 19-9, states:

             In most jurisdictions, disciplinary authorities
       treat violations of the rule against commingling trust
       funds    and  personal   funds   extremely   seriously.
       . . . even where the client or third party suffers no
       loss, harsh sanctions usually follow as a prophylactic
       warning that comingling cannot be tolerated.
       ¶34   Attorney Mulligan's assertion that the OLR failed to

show    "specific       evidence    regarding      the    conversion         of    any

particular client funds" is unavailing particularly where, as

here, Attorney Mulligan's inability to produce the trust account

records required by the rules of professional responsibility is

part   of    the    reason    it   is   now   difficult     to    discern         "with

specificity" which client funds kept Attorney Mulligan's trust

account      afloat.          In   In   re     Trust     Estate        of     Martin,

39 Wis. 2d 437, 441-42, 159 N.W.2d 660 (1968), we explained:

       A trustee is not handling his own funds but funds of
       others and he must always be able to make a full
       accounting of his stewardship. When a trustee's
       accounts are not clear and accurate, all presumptions
       are against him and the obscurities and doubts are to
       be taken adversely against him.
       ¶35   This    rationale     applies    in   the    attorney      regulatory

context.       In      re    Disciplinary     Proceedings    Against          Weigel,

2012 WI 124, ¶41, 345 Wis. 2d 7, 823 N.W.2d 798.                            Here, the

record reflects that between December 2007 and December 2011,

Attorney Mulligan deposited over $45,000 of personal funds into

his trust account and withdrew at least $6,313.56 and as much as
$9,088.44 more for personal expenditures than he deposited for

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personal expenses during that period of time.                            The OLR trust

account investigator testified:

       We were able to determine that based upon the running
       balance in the account, it appeared on several
       occasions the balance of Mr. Mulligan's personal
       account went negative when he made disbursements.
       Therefore, he must have used other funds, other client
       or third-party funds, that were deposited in the
       account in order to cover those disbursements.
       ¶36    Conversion has been described as:

       [T]he unauthorized use of a client's funds for the
       lawyer's own purpose. It includes temporary use, and
       it extends to use that does not result in personal
       gain or benefit to the lawyer. Paying one client out
       of money due another, keeping an unearned advance fee,
       holding on to unused escrow funds, and applying client
       funds to the client's bill are all examples of
       conversion.
Weigel, 345 Wis. 2d 7, ¶41 (quoting ABA/BNA Lawyers' Manual on

Professional Conduct § 45:503 (2007)).                   Thus, the fact that the

OLR has not identified "specific" examples of conversion does

not    preclude       a   determination          that    a      lawyer     engaged      in

conversion, constituting misconduct.

       ¶37    Attorney    Mulligan       clearly       believes    that    because      he

sought to ensure that sufficient personal funds were available

to avoid overdraft, this excuses his trust account violations.

The    record    evidence,     however,      demonstrates         that    by    extensive

commingling      of    personal    and     client      monies,    Attorney       Mulligan

misrepresented the balance of client funds in his trust account

at    any    given    point   in   time.        See,    e.g.,    Attorney       Grievance

Comm'n of Md. v. Glenn, 671 A.2d 463, 487 (Md. Ct. App. 1996)
(rejecting a lawyer's claim that his own deposits into a trust


                                           17
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account cured any trust account violation, observing that "a

trust     account     is    a    trust        account,        not        one     dependent       on

discretionary        infusions          of     money         from        another        source").

Attorney    Mulligan's          trust    account        so     inextricably             comingled

client and personal funds that it is impossible to know which or

whose funds were being used at any particular time.                                   The record

here supports the referee's findings and conclusions that the

trust account anomalies at issue rose to the level of misconduct

under SCR 20:8.4(c).

      ¶38   We   turn      to    the    question        of    appropriate             discipline.

The   referee    recommends        an        18-month    suspension             together       with

$7,500 in restitution to R.W. and full costs.                             Attorney Mulligan

appeals, objecting to restitution and full costs, and asserting

that a reprimand should suffice for what he maintains is de

minimus misconduct.

      ¶39   In   assessing         a     proper     sanction,             we     consider       the

following factors:          (1) the seriousness, nature, and extent of

the misconduct; (2) the level of discipline needed to protect
the public, the courts, and the legal system from repetition of

the attorney's misconduct; (3) the need to impress upon the

attorney the seriousness of the misconduct; and (4) the need to

deter other attorneys from committing similar misconduct.                                     In re

Disciplinary        Proceedings         Against     Hammis,              2011    WI      3,    ¶39,

331 Wis. 2d 19, 793 N.W.2d 884.                     In addition, we follow the

concept     of   progressive            discipline.                 In     re        Disciplinary

Proceedings Against Brandt, 2012 WI 8, ¶21, 338 Wis. 2d 524, 808


                                               18
                                                                              No.     2013AP2742-D



N.W.2d 687; In re Disciplinary Proceedings Against Nussberger,

2006 WI 111, ¶27, 296 Wis. 2d 47, 719 N.W.2d 501.

       ¶40    The        referee         recommends      that   Attorney            Mulligan      be

ordered to pay $7,500 in restitution to R.W. as reimbursement

for unearned fees.                  The OLR did not seek restitution in the

complaint or during the disciplinary litigation, stating that it

"could     not         ascertain     a     reasonable       amount       to    be     refunded."

Nothing      precludes         a    referee       from    making    or    this       court      from

accepting         a    sua    sponte       recommendation       regarding           restitution.

See   In     re       Disciplinary         Proceedings      Against      Din,       2015    WI    4,

360 Wis.      2d       274,   858        N.W.2d   654    (referee     overruled         parties'

stipulation             to        restitution           totaling      $13,250,             instead

recommending            $14,250      total    restitution,         and    we        adopted      the

referee's recommendation).                    We are not persuaded that Attorney

Mulligan       lacked         a     sufficient         opportunity        to        address      the

referee's         findings         and    recommendation        regarding           restitution.

Attorney Mulligan appealed the report and has argued his case

extensively in his appellate briefs and at oral argument.
       ¶41    The        referee's          recommendation         was        based        on    the

referee's review, primarily, of two exhibits Attorney Mulligan

offered at the evidentiary hearing:                         Exhibit D, an itemization

of Attorney Mulligan's work performed for R.W.; and Exhibit E,

24    pages       of    printouts         documenting      court     activity         in    R.W.'s

criminal cases from the Wisconsin Court System Circuit Court

Access       (WCCA)       website.            Attorney      Mulligan          presented         this

evidence in support of his theory that, although he failed to
provide a fee agreement, R.W. received the legal services he
                                                  19
                                                                       No.     2013AP2742-D



paid for; Attorney Mulligan maintains that the $9,500 fee he

received from R.W. was reasonable.

    ¶42      The     referee's      assessment       of     this     itemization           is

scathing.         He deemed the itemization a faulty, error-riddled

document generated after the fact; indeed, he refers to it as a

"fabrication" and opined that several of the itemized events

either did not take place or could not have taken the time the

itemization asserts.

    ¶43      We    conclude,     however,        that     the    evidence       fails      to

support a $7,500 restitution order.                     We agree with the OLR's

original     assessment      that   this    record       does    not    permit        us    to

ascertain a reasonable amount, if any, to be refunded, and we

decline to impose restitution in this matter.

    ¶44      Attorney      Mulligan     expresses        concern       about     what      he

perceives     to      be     extraneous         investigation,         findings,           and

conclusions in the referee's report.                    As noted, the report does

contain an extensive and largely negative characterization of

Attorney     Mulligan's       professional        efforts       on   behalf      of     R.W.
Attorney     Mulligan        contends      that     the     referee's          commentary

pertaining to the fee itemization, his review of WCCA records,

and his post-hearing review of Attorney Mulligan's trust account

records were improper.

    ¶45      While the referee pursued this inquiry with unusual

zeal,   we    need     not    explore      whether        his    efforts        transcend

propriety.        The referee is the ultimate arbiter of the facts and

credibility of witnesses.             His observations inform our review
and we discern no reason to deem his findings clearly erroneous.
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                                                                            No.     2013AP2742-D



The     findings          are      germane,       primarily,          to     the     referee's

restitution recommendation, which we have declined to adopt.                                 We

are mindful, moreover, that the OLR did not allege a lack of

competent representation under SCR 20:1.1 or a lack of diligence

under SCR 20:1.3.                The discipline we impose today is based on

the eight counts of misconduct alleged in the OLR complaint.

      ¶46      We agree with Attorney Mulligan that the disciplinary

cases     cited      by     the        OLR   generally        reflect       more     egregious

misconduct than occurred here and thus provide limited guidance.

See In re Disciplinary Proceedings Against Evans, 2000 WI 124,

239   Wis.      2d   279,        618    N.W.2d      873     (lawyer      with     disciplinary

history suspended for two years, for conversion of client funds,

failure      to      provide        the      client        with     an     accounting,      and

misrepresentations to cover her inability to pay the balance);

Edgar,    230     Wis.      2d    205     (lawyer     suspended       for    two    years   for

conversion           of          $11,000         from         an         escrow       account,

misrepresentations, and failure to maintain required records).

      ¶47      However,         Attorney     Mulligan's        effort       to    characterize
his misconduct as trivial is similarly unpersuasive.                                The record

demonstrates         that       between      2007     and    2011,       Attorney     Mulligan

failed    to    properly         maintain     trust        account       records,    deposited

personal money into his trust account, disbursed money from his

trust    account      for        personal    expenses,        and     regularly      deposited

client funds into his business account.                               Attorney Mulligan's

actions     are      not    mere       "technical         deficiencies."           The   record

before us also reveals a persistent pattern of failure to abide
by the requirements of our rules of professional conduct.
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                                                                                No.     2013AP2742-D



    ¶48     We      find    useful          guidance          in    In         re     Disciplinary

Proceedings      Against        Schuster,         2006      WI     21,    289        Wis.     2d   23,

710 N.W.2d 458, where a lawyer was suspended for nine months for

significant and pervasive trust account violations,                                         including

comingling of personal and trust accounts.                                Upon consideration

of the relevant facts and misconduct, we conclude that a nine-

month suspension of Attorney Mulligan's license to practice law

is appropriate and warranted by the facts and by the principle

of progressive discipline.

    ¶49     As   in      Schuster,      some          conditions         are    appropriate         to

foster    Attorney         Mulligan's            compliance         with        trust         account

requirements.         We direct him to attend an OLR trust account

seminar and, following reinstatement, Attorney Mulligan shall

submit to OLR trust account monitoring for a period of three

years, or until such time as the OLR moves this court for an

order ending monitoring.

    ¶50     Finally,        we     consider           Attorney          Mulligan's           repeated

objections to the costs of this proceeding.                                Attorney Mulligan
argues    that   some      of    the    counts         in     the    OLR's          complaint      are

technicalities and some are duplicative, that he cooperated in

the proceedings, and that the referee engaged extraneous and

irrelevant findings.             The court's general policy is that, upon a

finding of misconduct, it is appropriate to impose all costs,

including     the     expenses         of    counsel          for       the     OLR,        upon   the

respondent.         We   perceive       nothing          in      this    record        to     justify

deviating from our usual policy of imposing full costs.                                             We
decline     to   reduce         costs       on    the       theory       that         the     referee
                                                 22
                                                                       No.   2013AP2742-D



scrutinized evidence too closely.                  We assess the full costs of

this proceeding against Attorney Mulligan.

    ¶51        IT IS ORDERED that the license of Thomas O. Mulligan

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

months, effective November 7, 2015.

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

of this order, Thomas O. Mulligan shall pay to the Office of

Lawyer    Regulation        the      costs    of   this    proceeding,       which   are

$17,720.02.

    ¶53        IT IS FURTHER ORDERED that Thomas O. Mulligan 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.

    ¶54        IT IS FURTHER ORDERED that, as a condition of any

reinstatement         of   his      license   to   practice      law    in   Wisconsin,

Thomas O. Mulligan shall attend and successfully complete an

Office of Lawyer Regulation trust account seminar and shall pay

the related participation fees.
    ¶55        IT IS FURTHER ORDERED that, upon reinstatement of his

license    to       practice     law,   Thomas     O.    Mulligan's     trust     account

shall     be    subject        to    monitoring     by     the   Office      of   Lawyer

Regulation for three years or until further order of this court.

    ¶56        IT    IS    FURTHER      ORDERED     that     compliance      with    all

conditions of this order is required for reinstatement.                               See

SCR 22.29(4)(c).

    ¶57        ANN WALSH BRADLEY, J., and ANNETTE KINGSLAND ZIEGLER,
J., did not participate.
                                              23
                                                                    No.    2013AP2742-D.ssa



      ¶58    SHIRLEY S. ABRAHAMSON, J.                   (concurring).           OLR sought

a   two-year      suspension.         The    referee      recommended       an     18-month

suspension.        After a contested proceeding, the court imposes a

nine-month       suspension     for    repeated       significant         violations      of

trust accounting rules (not merely "technical" violations).

      ¶59    This is Attorney Mulligan's fourth brush with OLR.                           In

1997, Attorney Mulligan received a private reprimand.                              In 2005,

he received a private reprimand.                   In 2009, he received a public

reprimand.

      ¶60    Attorney     James       T.    Runyon    also    violated       substantive

trust   accounting         rules.            OLR     v    Runyon,         2015     WI    95,

___ Wis. 2d ___, ___ N.W.2d ___.                   He has had two prior brushes

with OLR.        In 1988, his license was suspended for one year.                         In

2006, he received a private reprimand.

      ¶61    I     have    difficulty         reconciling          the     significantly

different      levels     of   discipline          imposed    in    these        two    trust

accounting cases.




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