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In re Disciplinary Proceedings Against Mutschler

Supreme Court of Wisconsin

September 25, 2019

In the Matter of Disciplinary Proceedings Against Christopher A. Mutschler, Attorney at Law:
Christopher A. Mutschler, Respondent-Appellant. Office of Lawyer Regulation, Complaint-Respondent,

          SUBMITTED ON BRIEFS: September 17, 2019


         ATTORNEY reinstatement proceeding. Reinstatement denied.

          For the respondent-appellant, there were briefs filed by Christopher A. Mutschler, Sheboygan.

          For the complainant-respondent, there was a brief filed by Matthew J. Price and Foley & Lardner LLP, Milwaukee.

          PER CURIAM.

         ¶1 The respondent-appellant, Christopher A. Mutschler, appeals Referee Jonathan V. Goodman's report recommending that we deny Attorney Mutschler's petition for reinstatement of his license to practice law in Wisconsin, following his 2011 consensual license revocation. After fully reviewing this matter, we agree that Attorney Mutschler 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 Mutschler should be required to pay the costs of this reinstatement proceeding, which are $4, 577.90 as of December 18, 2018.

         ¶2 Attorney Mutschler was admitted to practice law in Wisconsin in 1991. He practiced out of small or solo law offices in Milwaukee, Elkhart Lake, and Fond du Lac, predominantly in the area of criminal traffic defense. At the time, Attorney Mutschler had no prior discipline with the exception of a temporary suspension imposed against him for his willful failure to cooperate with the OLR's investigation concerning the conduct that ultimately led to his consensual license revocation.

         ¶3 Attorney Mutschler's misconduct was serious. At the time of his revocation, there were 59 grievances pending against him. Nearly all followed a similar pattern. Attorney Mutschler would obtain payment of an advance fee, often a flat fee, to represent a client in a traffic, operating while intoxicated (OWI), or a criminal case. In re Disciplinary Proceedings Against Mutschler, 2011 WI 74, 336 Wis.2d 241, 804 N.W.2d 680. In OWI and traffic cases, Attorney Mutschler would frequently advise the client to enter a no contest plea and promise that he would win the case on appeal. In some cases, Attorney Mutschler would never notify the client of the scheduled hearing on the pending charge or citation, so the client would fail to appear. In some cases, Attorney Mutschler himself would fail to appear at the scheduled hearing. Consequently, the presiding judge would enter a default judgment against the client. In other cases, the client would enter a guilty or no contest plea, then Attorney Mutschler would either fail to file an appeal or would fail to prosecute the appeal properly, which would lead to the dismissal of the client's appeal. Attorney Mutschler also frequently failed to communicate adequately with his clients. In some cases, his clients made dozens of telephone calls but Attorney Mutschler never returned them. In many cases, Attorney Mutschler simply stopped communicating at all with the clients, requiring them either to hire new counsel or to proceed on their own without counsel.

         ¶4 In addition, in 2008, pursuant to a plea agreement, Attorney Mutschler pled no contest to a charge of uttering a forgery, a felony, and to a charge of possession of an illegally obtained prescription medication, a misdemeanor. The forgery count was subject to a deferred prosecution agreement and was later dismissed on the prosecutor's motion. These charges stemmed from Attorney Mutschler being caught in the act of forging prescription forms and using such forms to obtain pain medication.

         ¶5 As noted, Attorney Mutschler eventually filed a petition for consensual license revocation which this court granted on July 14, 2011. We noted that Attorney Mutschler likely committed dozens of violations of SCRs 20:1.3 (lack of diligence), 20:1.4 (failure to communicate), 20:1.15(b) (4) (failure to hold unearned fees in trust), 20:1.16(d) (failure to return unearned advance payments upon termination), and 20:8.4(c) (engaging in dishonesty, fraud, deceit, or misrepresentation). As part of his consensual revocation order, Attorney Mutschler was required to make restitution to individual clients and the Wisconsin Lawyers' Fund for Client Protection (the Fund) totaling $246, 723, reflecting monies owed to some 45 clients, and to comply with SCR 22.26. Mutschler, 336 Wis.2d 241.

         ¶6 On November 10, 2017, Attorney Mutschler filed this petition for reinstatement. The OLR opposed his petition. The court appointed Referee Goodman. Referee Goodman conducted a one-day hearing on July 12, 2018. Attorney Mutschler testified on his own behalf, and also elicited testimony from a friend, Howard Schumacher. On August 13, 2018, the referee issued a report recommending the court deny Attorney Mutschler's petition. Attorney Mutschler appealed and the parties filed briefs.

         ¶7 Attorney Mutschler contends that he has satisfied the requirements for reinstatement. Attorney Mutschler also reasons that the only way he will ever satisfy his restitution obligations will be if he is permitted to practice law again. He asks the court to reinstate him so he can make headway against those restitution obligations.

         ¶8 The standards that apply to petitions for reinstatement after a disciplinary suspension or revocation are set forth in SCR 22.31(1). 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. In addition, SCR 22.31 (1)[1] incorporates the statements that a petition for reinstatement must contain pursuant to SCR 22.29(4) (a)-(k) and (4m) .[2] Thus, the petitioning attorney needs to demonstrate that the required representations in the reinstatement petition are substantiated.

         ¶9 On review, we accept a referee's findings of fact unless they are clearly erroneous. We review a referee's legal conclusions, including whether the attorney has satisfied the criteria for reinstatement, on a de novo basis. In re Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334 Wis.2d 335, 801 N.W.2d 304; In re Disciplinary Proceedings Against Gral, 2010 WI 14, ¶22, 323 Wis.2d 280, 779 N.W.2d 168.

         ¶10 The referee concluded, and we agree, that Attorney Mutschler satisfied several of the criteria required for reinstatement. Attorney Mutschler has demonstrated that he desires to have his license reinstated, SCR 22.29(4)(a); that he has not practiced law during the periods of his suspension and revocation, SCR 22.29(4) (b);[3] and that he has maintained competence and learning in the law, SCR 22.29(4) (d) .[4] He has also explained how he would use his license if reinstated, SCR 22.29(4) (j), [5] and he has outlined his activities during his revocation, SCR 22.29(4) (k) .

         ¶11 With respect to the remaining prerequisites to reinstatement, our review is complicated by the fact that the referee did not make specific findings or conclusions with respect to several factors.[6] In the absence of adverse findings, Attorney Mutschler reasons that "as Referee Goodman has found, Mr. Mutschler has satisfied all of the necessary criteria for reinstatement, other than repaying the Fund."

         ¶12 The referee focused on the most significant challenge facing Attorney Mutschler's reinstatement petition: his undisputed failure to make any restitution to clients aggrieved by his misconduct. Addressing restitution is required in all reinstatement proceedings, see, e.g., SCR 22.29(4)(c) and (4m), and bears on many of the outstanding reinstatement criteria. Supreme Court Rule 22.29(4)(c) and (4m) require that the petitioner has made restitution to or settled all claims of persons injured or harmed by the petitioner's misconduct, including reimbursement to the Fund for all payments made from the Fund, or, if not, the petitioner's explanation for the failure or inability to do so.

         ¶13 Attorney Mutschler acknowledges that he has not paid restitution. He contends, however, that this should not preclude his reinstatement because he has explained his failure or inability to do so. He attributes his failure to pay restitution to his inability to pay. He cites his ...

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