2019 WI 92
SUPREME COURT OF WISCONSIN CASE NO.: 2010AP1939-D COMPLETE TITLE: In the Matter of Disciplinary Proceedings Against Christopher A. Mutschler, Attorney at Law:
Office of Lawyer Regulation, Complainant-Respondent, v. Christopher A. Mutschler, Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST MUTSCHLER
OPINION FILED: September 25, 2019 SUBMITTED ON BRIEFS: September 17, 2019 ORAL ARGUMENT:
SOURCE OF APPEAL: COURT: COUNTY: JUDGE:
JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING:
ATTORNEYS:
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. 2019 WI 92 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP1939-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings Against Christopher A. Mutschler, Attorney at Law:
Office of Lawyer Regulation, FILED Complaint-Respondent, SEP 25, 2019
v. Sheila T. Reiff Clerk of Supreme Court
Christopher A. Mutschler,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
¶1 PER CURIAM. 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 No. 2010AP1939-D
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 2 No. 2010AP1939-D
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:l.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, 3 No. 2010AP1939-D
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 4 No. 2010AP1939-D
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
1 SCR 22.31(1) provides the petitioner has the burden of demonstrating, by clear, satisfactory, and convincing evidence, all of the following:
(a) That he or she has the moral character to practice law in Wisconsin.
(b) 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.
(c) That his or her representations in the petition, including the representations required by SCR 22.29(4)(a) to (m) and 22.29(5), are substantiated.
(d) That he or she has complied fully with the terms of the order of suspension or revocation and with the requirements of SCR 22.26. 2 SCR 22.29(4)(a)-(k) and (4m) provides that a petition for reinstatement shall show all of the following:
(a) The petitioner desires to have the petitioner's license reinstated.
(b) The petitioner has not practiced law during the period of suspension or revocation.
(c) The petitioner has complied fully with the terms of the order of suspension or revocation and will continue to comply with them until the petitioner's license is reinstated.
(continued) 5 No. 2010AP1939-D
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
(d) The petitioner has maintained competence and learning in the law by attendance at identified educational activities.
(e) The petitioner's conduct since the suspension or revocation has been exemplary and above reproach.
(f) The petitioner has a proper understanding of and attitude toward the standards that are imposed upon members of the bar and will act in conformity with the standards.
(g) The petitioner can safely be recommended to the legal profession, the courts and the public as a person fit to be consulted by others and to represent them and otherwise act in matters of trust and confidence and in general to aid in the administration of justice as a member of the bar and as an officer of the courts.
(h) The petitioner has fully complied with the requirements set forth in SCR 22.26.
(j) The petitioner's proposed use of the license if reinstated.
(k) A full description of all of the petitioner's business activities during the period of suspension or revocation.
(4m) The petitioner has made restitution to or settled all claims of persons injured or harmed by petitioner's misconduct, including reimbursement to the Wisconsin lawyers' fund for client protection for all payments made from that fund, or, if not, the petitioner's explanation of the failure or inability to do so.
6 No. 2010AP1939-D
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
3 The referee found that Attorney Mutschler has not practiced law during his revocation. We accept that finding. Certain questions were raised about an incident when Attorney Mutschler's employer asked him to accompany a property manager to a court hearing to help her with an eviction proceeding. Attorney Mutschler disclosed in that court proceeding that, "he was not an attorney and was not engaged in the practice of law and that he was there merely to support the apartment manager." (Emphasis in original.) The OLR questioned whether he should have accompanied the property manager to court, but conceded that other attorneys engaged in similar conduct and were not found to have violated the rules or denied reinstatement on that basis. See In re Disciplinary Proceedings Against Hyndman, 2002 WI 6, ¶¶7-14, 249 Wis. 2d 650, 638 N.W.2d 293; In re Disciplinary Proceedings Against George, 2010 WI 116, ¶¶5-22, 329 Wis. 2d 333, 789 N.W.2d 577. 4 The referee made no finding on the issue of Attorney Mutschler's learning and competency, but it is not disputed that the Board of Bar Examiners filed a memorandum stating that Attorney Mutschler "is currently in compliance with the court's CLE and EPR requirements for reinstatement." The record reflects Attorney Mutschler's successful completion of numerous continuing legal education classes.
7 No. 2010AP1939-D
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),
The record indicates that Attorney Mutschler has been 5
offered a legal job with a law firm that handles criminal traffic cases and he provided documentary support for the offer.
For example, the referee did not specifically render a 6
conclusion as to whether Attorney Mutschler has the moral character to practice law in Wisconsin; whether his resumption of the practice of law would be detrimental to the administration of justice; whether Attorney Mutschler has proven that his conduct since revocation has been exemplary and above reproach; whether Attorney Mutschler has complied fully with the terms of the order of suspension or revocation and will continue to comply until the petitioner's license is reinstated; or whether Attorney Mutschler has a proper understanding and attitude toward the standards imposed upon Bar members or whether he can safely be recommended as fit to practice law.
8 No. 2010AP1939-D
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
"significantly limited income despite efforts to obtain a higher
paying position."
¶14 The referee explained his adverse recommendation, as
follows:
Mr. Mutschler has made no attempt to make arrangements to pay $1.00 to his restitution, and for that matter, there has been no evidence that he has made payments on any of his debts. The obvious reason, of course, is that he was unemployed and, therefore, did not have the funds to make any payments.
Secondly, after being employed for a period of one year as a hotel desk clerk, he left that employment to care for his sick grandmother. While it is certainly noble to take care of one's relative who is ill, this writer cannot imagine that Mr. Mutschler would have time to do this if he had not lost his license, and still was in the midst of an active practice defending traffic violators. Yet here, he completely abandoned a steady job, apparently without giving any thought to paying restitution or paying his other debts.
9 No. 2010AP1939-D
. . .
It appears he has had odd jobs since he resigned from the hotel, but nothing permanent.
Mr. Mutschler testified that he had not come up with a plan for paying back his restitution in the event that his license was reinstated. Referee Rpt. p. 4. The referee concluded, "[t]here is nothing
in this record that gives the Referee confidence that Mr.
Mutschler would engage in a program to repay his restitution
once he became employed if his license was reinstated." ¶15 Essentially, on appeal, Attorney Mutschler says the
referee's finding that he has no repayment plan in mind is
clearly erroneous. He cites the following exchange from the
evidentiary hearing:
Referee: Okay. Have you developed any kind of a plan for starting to repay this approximately $250,000 debt to either the client compensation fund of the state bar or to individual clients assuming that you were able to begin practicing law again with the Melowski law firm?
Respondent: Yes, I actually have discussed with [his potential future employer] that I have this outstanding debt that I owe to the state bar client protection fund, and I told him that - or I asked him, I guess, not told him - it was more of a question - as to whether or not, when I get paid, if it would be possible to set something up whereby instead of getting my whole paycheck, a certain amount could just be straightaway sent off to the bar as part of my compensation, or if that was something that was just too complicated to do and that I would have to pay out of my, you know, own account to the bar. So, yeah, I actually did mention that to [his prospective employer].
10 No. 2010AP1939-D
Referee: And do you have a figure in mind that you would be able to pay per paycheck or per month to start paying this debt off?
Respondent: I guess that depends on what we negotiate the salary to be. I mean, ultimately, you know, if it's a $40,000 salary versus, let's say, I could negotiate a $60,000 salary - it's going to be a vastly different amount. But I - at this time, I really don't have a specific number until I know what I'm getting compensated. R37 at 104:23 to 106:l; R-App. at 112-114.
¶16 The referee's conclusion that Attorney Mutschler has
failed to adequately satisfy his restitution obligation in a
manner sufficient to warrant reinstatement rests on implicit and
intertwined findings about the credibility of Attorney
Mutschler's claim that he made adequate efforts to do so.
Typically, we defer to a referee's credibility determinations.
See, e.g., In re Disciplinary Proceedings Against Gamiño, 2011
WI 42, 334 Wis. 2d 279, 801 N.W.2d 299. When a court does not
make an explicit finding, an implicit finding may suffice, but
only if the facts of record support it. State v. Echols, 175
Wis. 2d 653, 672, 499 N.W.2d 631 (1993).
¶17 Attorney Mutschler owes $246,723 in restitution. He
has made no restitution payments. He attributes this to his
inability to pay. The record indicates that after his
revocation, Attorney Mutschler worked for a period of time at
minimum wage as a third-shift night clerk at the Candlewood
Suites in Brown Deer, Wisconsin. He left this position to care
for a family member. He was later employed at La Coppa, LLC, which manufactured and sold sorbet and gelato until the company
11 No. 2010AP1939-D
closed. While employed at La Coppa, Attorney Mutschler acted as
a human resources manager, promulgating an employee handbook,
hiring and training cafe workers, ordering food supplies, and
organizing participation in festivals across the state. Since
then, Attorney Mutschler has only performed sporadic, small odd
jobs, such as yard work, painting, and furniture moving. He
subsists on a small stipend from a family member and resides
with his mother. He has not been regularly employed since 2014.
Attorney Mutschler maintains, however, that he has
unsuccessfully applied for literally hundreds of jobs.
¶18 In response to the OLR's suggestion that he has been
unrealistic in his job search, Attorney Mutschler vigorously
defends his efforts to obtain employment. He points to his
friend's uncontested testimony at the hearing that Attorney
Mutschler applied for "numerous" jobs and was repeatedly
rejected, but it was never for a lack of trying. Attorney
Mutschler asserts, as well, that he did apply on more than one
occasion to such minimum-wage employers as McDonald's, WalMart, Kwik Trip, et al., all without success. He says that, "[f]or
the OLR to even imply there was a lack of either willingness or
diligence on Mr. Mutschler's part to gain employment is beyond
ludicrous and borders on the cruel." Attorney Mutschler says
that "this Court can rest assured that any failure to repay the
Fund to this point was not the product of an uncaring,
indifferent, or callous attitude on Mr. Mutschler's part."
¶19 We conclude that the facts of record support the referee's determination that, "[t]here is nothing in this record 12 No. 2010AP1939-D
that gives the Referee confidence that Mr. Mutschler would
engage in a program to repay his restitution once he became
employed if his license was reinstated." We take no position as
to whether Attorney Mutschler might have approached his job
search differently, or his decision to leave a stable job to
care for a family member. What stands out is the undisputed
fact that in the nearly seven years between the time his license
was revoked and his reinstatement petition, Attorney Mutschler
never made any contact with the Fund or his former clients to
make any arrangements for repayment of any part of his
restitution obligation.
¶20 As the OLR observed, there is a difference between not
having enough money to fully pay restitution, and "making
absolutely no discernable efforts to directly address one's
obligations to the many victims of his misconduct." In the
OLR's view, Attorney Mutschler falls into the latter category.
The referee reluctantly agreed and we defer to his credibility
determination and his resulting conclusion that Attorney Mutschler failed to carry his burden of proof regarding
SCR 22.29(4)(4m), requiring a lawyer to demonstrate that he or
she has made restitution to or satisfied all claims of persons
injured or harmed by his misconduct, and SCR 22.29(4)(c),
requiring that he comply with the terms of the suspension and
revocation orders. See also SCR 22.31(1)(d) (requiring clear
and convincing evidence that he "has complied fully with the
terms of the order of suspension or revocation and with the requirements of SCR 22.26."). 13 No. 2010AP1939-D
¶21 Attorney Mutschler's failure to satisfy this
prerequisite regarding restitution precludes his reinstatement.
Our decision in this regard is consistent with another matter in
which we recently denied reinstatement to a lawyer who was also
revoked by consent, largely because he failed to provide an
accounting or make restitution to a number of clients and his
former law firm as ordered by the court. See In re Disciplinary
Proceedings Against Mularski, 2018 WI 99, 384 Wis. 2d 97, 919
N.W.2d 368. Unlike Attorney Mutschler, Attorney Mularski had
actually made substantial restitution payments. Id., ¶4.
¶22 As noted, the referee did not make specific findings
or conclusions on several of the remaining reinstatement
criteria. We opt not to remand this matter to the referee for
additional findings and conclusions because further proceedings
before the referee would incur additional costs that would be
assigned to Attorney Mutschler, yet would not alter our
determination that reinstatement is not warranted at this time.
¶23 We would be remiss and our opinion incomplete, however, if we failed to address an important aspect of Attorney
Mutschler's personal history that he raises in his petition.
When much of the underlying misconduct occurred, Attorney
Mutschler was grappling with opiate addiction. Attorney
Mutschler reports having been sober since 2008; there is nothing
in the record to the contrary. This is highly commendable. The
OLR expresses great concern that Attorney Mutschler does not
14 No. 2010AP1939-D
regularly participate in addiction programing or counseling.7 In
the absence of any record evidence indicating that Attorney
Mutschler's recent or present conduct is actively affected by
addiction or depression, we are deeply reluctant to suggest
Attorney Mutschler's management of these medical issues is
somehow an adverse factor in this reinstatement proceeding.
¶24 On a related note, Attorney Mutschler cites case law
suggesting he believes that the question of medical incapacity
may be relevant here. We disagree. Attorney Mutschler was not
found to be subject to a medical incapacity in his underlying
petition for consensual license revocation.
¶25 This court has repeatedly reaffirmed that a lawyer
does not enjoy a presumption of rehabilitation, see In re
Disciplinary Proceedings Against Hyndman, 2002 WI 6, ¶4, 249
Wis. 2d 650, 638 N.W.2d 293; and there is no right to
reinstatement, see In re Disciplinary Proceedings Against Banks,
2010 WI 105, 329 Wis. 2d 39, 787 N.W.2d 809. The cases Attorney
Mutschler cites, including In re Disciplinary Proceedings Against Belke, 2015 WI 41, 362 Wis. 2d 55, 862 N.W.2d 861, do
Attorney Mutschler regularly attended Alcoholics Anonymous 7
(AA) meetings from 2007-2009. He was advised to attend AA instead of Narcotics Anonymous meetings. He estimates attending approximately two dozen AA meetings since 2009. With respect to depression treatment, Attorney Mutschler attended individual counseling in 2007-2008, which he says he terminated due to cost. He reports not having suffered from severe depression since becoming sober.
15 No. 2010AP1939-D
not persuade us that he has satisfied the requirements for
license reinstatement.
¶26 Finally, with respect to the costs of this
reinstatement proceeding, it is our general practice to assess
the full costs of the proceeding against the petitioning
attorney. See SCR 22.24(1m). Nothing in this case warrants a
reduction in the costs, and we impose the full costs of the
reinstatement proceeding on Attorney Mutschler.
¶27 IT IS ORDERED that the petition for reinstatement is
denied.
¶28 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Christopher A. Mutschler shall pay to the Office
of Lawyer Regulation the costs of this proceeding, which are
$4,577.90 as of December 18, 2018.
16 No. 2010AP1939-D