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In re Disciplinary Proceedings Against Mandelman

Supreme Court of Wisconsin

May 24, 2018

In the Matter of Disciplinary Proceedings Against Michael D. Mandelman, Attorney at Law:
v.
Michael D. Mandelman, Respondent-Appellant. Office of Lawyer Regulation, Complainant-Respondent,

         ON THE PETITION FOR REINSTATEMENT OF MANDELMAN

         ATTORNEY reinstatement proceeding. Reinstatement denied.

          PER CURIAM.

         ¶1We review, pursuant to Supreme Court Rule (SCR) 22.33(3), [1] a report filed by Referee James W. Mohr, Jr., recommending the court reinstate the license of Attorney Michael D. Mandelman to practice law in Wisconsin, with conditions. The Office of Lawyer Regulation (OLR) did not appeal the referee's recommendation. After fully reviewing this matter, we conclude that Attorney Mandelman has not satisfied the criteria required to resume the practice of law in this state, and we deny his petition for reinstatement. We also determine that Attorney Mandelman should be required to pay the costs of this reinstatement proceeding, which were $7, 674.57 as of October 10, 2017.

         ¶2 The standards that apply to all petitions for reinstatement after a disciplinary suspension or revocation are set forth in SCR 22.31(1) .[2] In particular, the petitioning attorney must demonstrate by clear, satisfactory, and convincing evidence that he or she has the moral character necessary to practice law in this state, that his or her resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, and that the attorney has complied fully with the terms of the suspension or revocation order and the requirements of SCR 22.26.

         ¶3 In addition, SCR 22.31(1)(c) incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4) (a)-(k) and (4m) .[3] Thus, the petitioning attorney shall demonstrate that the required representations in the reinstatement petition are substantiated.

         ¶4 When reviewing referee reports in reinstatement proceedings, we utilize standards of review similar to those we use for reviewing referee reports in disciplinary proceedings. We do not overturn a referee's findings of fact unless they are clearly erroneous. On the other hand, we review a referee's legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. In re Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334 Wis.2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings Against Gral, 2010 WI 14, ¶22, 323 Wis.2d 280, 779 N.W.2d 168.

         ¶5 Attorney Mandelman was licensed to practice law in Wisconsin in 1980. He has been the subject of seven disciplinary proceedings. His license has been suspended or revoked since 2006.

         ¶6 In 1990, Attorney Mandelman was suspended for one year for 27 counts of misconduct that affected more than a dozen clients. The complaint included misconduct from 1985 and involved multiple counts of failing to act with diligence, failing to promptly return files to clients, simultaneously representing multiple clients with adverse interests, settling a client's claim without authorization, failing to communicate with clients, and making a misrepresentation to the former Board of Attorneys Professional Responsibility (BAPR), In re Disciplinary Proceedings Against Mandelman, 158 Wis.2d 1, 460 N.W.2d 749 (1990). In this, Attorney Mandelman's first disciplinary proceeding, the referee expressed concern about the "pattern of a large number and repeated offenses over a period of several years." This court commented that the misconduct "establish[ed] a definite pattern of Attorney Mandelman's disregard of very basic ethical obligations of lawyers." Id.

         ¶7 When that suspension ended, Attorney Mandelman petitioned for reinstatement of his license. The court denied his reinstatement petition on two grounds: additional professional misconduct was discovered, including his pestle suspension violation of the rules governing the handling of his client trust account and, during the reinstatement proceeding itself, he gave incomplete and evasive responses to the district committee and to the BAPR.

         ¶8 In response to the additional professional misconduct, the court suspended Attorney Mandelman's license for 18 months, imposed consecutive to the termination of the earlier suspension. In re Disciplinary Proceedings Against Mandelman, 182 Wis.2d 583, 514 N.W.2d 11 (1994). That misconduct included failing to act with diligence, failing to respond to clients' requests for information, failing to refund a client's retainer, violating the rules regarding trust accounts following his 1990 suspension, and failing to provide complete and accurate responses to BAPR. Id.

         ¶9 In 1995, we reinstated Attorney Mandelman's license with certain conditions that were intended to ensure that Attorney Mandelman remained compliant with our rules. Unfortunately, those conditions did not accomplish the desired result.

         ¶10 In 1999, Attorney Mandelman received a consensual private reprimand for making a false statement of fact to a tribunal. Private Reprimand No. 1999-18 (electronic copy available at https://compendium.wicourts.gov/app/raw/ 002085.html).

         ¶11 On December 12, 2003, the 0LR filed a complaint alleging 13 counts of misconduct. The parties litigated the case vigorously, and, in 2006, we suspended Attorney Mandelman for nine months for multiple instances of misconduct, including failing to act with reasonable diligence, failing to utilize a written fee agreement in a medical malpractice case, and persuading a client to sign a release of claims against him without the client obtaining independent representation. In re Disciplinary Proceedings Against Mandelman, 2006 WI 45, 290 Wis.2d 158, 714 N.W.2d 512.

         ¶12 In 2006, Attorney Mandelman also received a separate consensual private reprimand for drawing a check from his business account to make a mortgage payment of a personal injury client. Private Reprimand No. 2006-21 (electronic copy available at https://compendium.wicourts.gov/app/raw/ 001927.html).

         ¶13 In 2009, Attorney Mandelman, who had not been reinstated, was suspended for one year for additional misconduct that included collecting a fee without performing any work for the client, failing to provide the client with a written settlement statement, retaining a client's funds for more than four years, making misrepresentations to a client, failing to obtain a client's signature on a settlement check and failing to deposit the settlement funds into the client trust account, and failing to provide a client's file and funds to the client. In re Disciplinary Proceedings Against Mandelman, 2009 WI 40, 317 Wis.2d 215, 765 N.W.2d 788.

         ¶14 On August 1, 2014, in the wake of the discovery of still more misconduct, this court revoked Attorney Mandelman's license to practice law, pursuant to a stipulation between Attorney Mandelman and the OLR. In re Disciplinary Proceedings Against Mandelman, 2014 WI 100, 358 Wis.2d 179, 851 N.W.2d 401. The misconduct in the revocation proceeding involved 22 counts of misconduct for Attorney Mandelman's handling of trust accounts and funds, including commingling personal and business funds with client trust funds, converting client trust funds by engaging in trust account transactions that left negative balances in his own subsidiary accounts, failing to deliver trust funds to a client over a period of years, failing to keep complete and accurate trust account records, and on multiple occasions, filing income tax returns that were false. Attorney Mandelman's misconduct also included lack of diligence in a matter, failing to notify a client of his suspension in another, and providing a false affidavit to the OLR. Id.

         ¶15 The revocation was made retroactive to May 29, 2009, the effective date of a prior one-year suspension from which Attorney Mandelman had not been reinstated. Accordingly, he was immediately eligible to file a reinstatement petition, and he did so on August 5, 2014.

         ¶16 We denied that petition. In re Disciplinary Proceedings Against Mandelman, 2015 WI 105, 365 Wis.2d 457, 871 N.W.2d 682. We observed:

The scope and seriousness of Attorney Mandelman's prior misconduct reveals a lawyer who lacked a proper understanding of and attitude toward the standards that are imposed upon members of the bar.
Attorney Mandelman has accepted responsibility for his misconduct, but the mitigating effect of his acceptance of responsibility must be viewed in relation to his extensive disciplinary history along with the number of counts and the nature of his misconduct. The hard work Attorney Mandelman has undertaken to restructure his life and pay past due obligations to clients, creditors, and the court system is commendable, but not sufficient to demonstrate that reinstatement is appropriate at this time. He has cleaned up his act; now he must stay the course. This record lacks sufficient evidence that things will be different if he is reinstated to the practice of law again.

         ¶17 On March 21, 2017, Attorney Mandelman filed a second petition for the reinstatement of his license to practice law in Wisconsin. The OLR filed a response on July 31, 2017, stating that it did not oppose Attorney Mandelman's reinstatement but ...


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