Office of Lawyer Regulation v. Mulligan (In re Disciplinary Proceedings Against Mulligan)

• Decision Date: 08 October 2015
• Docket Number: No. 2013AP2742–D.,2013AP2742–D.
• Parties: 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.
• Court: Wisconsin Supreme Court

365 Wis.2d 43

870 N.W.2d 233

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.

No. 2013AP2742–D.

Supreme Court of Wisconsin.

Decided Oct. 8, 2015.

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶ 1 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 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 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, 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 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).

¶ 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)(1) ”³ (Count Three).

¶ 14 Again, Attorney Mulligan does not contest these charges and we accept the referee's conclusion that Attorney 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.

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 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...