Office of Lawyer Regulation v. Mutschler

2011 WI 74, 804 N.W.2d 680, 336 Wis. 2d 241, 2011 Wisc. LEXIS 364
CourtWisconsin Supreme Court
DecidedJuly 14, 2011
DocketNo. 2010AP1939-D
StatusPublished
Cited by2 cases

This text of 2011 WI 74 (Office of Lawyer Regulation v. Mutschler) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Lawyer Regulation v. Mutschler, 2011 WI 74, 804 N.W.2d 680, 336 Wis. 2d 241, 2011 Wisc. LEXIS 364 (Wis. 2011).

Opinion

PER CURIAM.

¶ 1. We review the petition of Attorney Christopher A. Mutschler for the consensual revocation of his license to practice law in Wisconsin. See SCR 22.19.

¶ 2. Attorney Mutschler was admitted to the practice of law in Wisconsin in 1991. He most recently practiced law in Fond du Lac.

¶ 3. Attorney Mutschler has not previously been the subject of professional discipline. His license to practice law in Wisconsin, however, has been temporarily suspended since March 2010 due to his willful failure to cooperate with the Office of Lawyer Regulation's (OLR) grievance investigations concerning his conduct. See SCR 22.03(4). His license remains suspended as of the date of this opinion.

¶ 4. The petition for consensual revocation and the OLR's summary of the misconduct allegations against Attorney Mutschler state that there are 59 separate investigations pending against him. The OLR's summary indicates that for each investigation there appear to be violations of multiple rules. Thus, if a formal complaint were to be filed against Attorney Mutschler, there could apparently be scores or even hundreds of counts of professional misconduct. In addition to the underlying misconduct at issue in these grievance investigations, Attorney Mutschler would also be subject to multiple additional counts related to his failure to cooperate with the OLR's separate grievance investigations.

¶ 5. Nearly all of the grievances against Attorney Mutschler appear to follow a similar pattern. In general, Attorney Mutschler would obtain payment of an advance fee, which was often a flat fee, to represent a client in a traffic, OWI, or criminal case. In OWI and traffic cases, Attorney Mutschler would then often advise the client to enter a no contest plea and promise that he would win [243]*243the case on appeal. In some cases, Attorney Mutschler would never notify the client of the scheduled hearing on the pending charge or citation, leading to the client failing to appear. In some cases, Attorney Mutschler himself would fail to appear at the scheduled hearing. The failure to appear by the client or Attorney Mutschler would often lead the judge presiding over the citation or charge to enter a default judgment against the client. In other cases, the client would, in fact, enter a guilty or no contest plea, but Attorney Mutschler would then either fail to file an appeal or would fail to prosecute the appeal properly, which would lead to the dismissal of the appeal.

¶ 6. In a large majority of the cases, the grievance alleges that Attorney Mutschler failed to communicate adequately with his client. In some cases, the clients made dozens of telephone calls (up to 100 calls in some instances), 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.

¶ 7. Some examples of the numbers of possible violations may provide some context for the scope of Attorney Mutschler's professional misconduct. In 57 of the 59 investigations, the OLR alleges a possible violation of SCR 20:1.3,1 which requires a lawyer to act with reasonable diligence and promptness. In 53 of the investigations, there are possible failures to communicate properly with clients, in violation of SCR 20:1.4.2 In 54 of the grievance investigations, there is an alle[244]*244gation that Attorney Mutschler failed to hold unearned fees and advance payments received from clients in trust until earned, in violation of SCR 20:1.15(b)(4).3 In 52 of the investigations, there is an allegation that Attorney Mutschler failed to take reasonable steps to [245]*245protect his clients' interests upon the termination of the representation, including returning unearned advance payments, in violation of SCR 20:1.16(d).4 Finally, the OLR indicates that in 26 of the investigations there may be a possible violation of SCR 20:8.4(c),5 which prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

[246]*246¶ 8. In addition to misconduct related to representations of clients, the OLR's summary of misconduct also indicates that Attorney Mutschler engaged in criminal conduct. 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. According to the OLR's summary of misconduct, these charges stemmed from Attorney Mutschler being caught in the act of forging prescription forms and using such forms to obtain pain medication on March 26, 2007. The police later discovered that Attorney Mutschler had also successfully used a forged prescription form to obtain pain medication on March 5, 2007.

¶ 9. Attorney Mutschler's petition for consensual revocation acknowledges that he cannot successfully defend himself against the professional misconduct allegations described in the OLR's misconduct summary. In addition, in the petition Attorney Mutschler avows that his filing of the petition is being done freely, voluntarily, and knowingly. He acknowledges that he has the right to contest the charges against him and the right to retain counsel to advise and assist him in these matters, and states that he is giving up these rights. Attorney Mutschler further acknowledges that if the court grants his petition and revokes his license, he will be subject to the provisions of SCRs 22.26-22.33.

¶ 10. We must also address the issue of restitution in connection with Attorney Mutschler's petition for revocation. In the petition Attorney Mutschler states that he cannot successfully defend against the restitution orders sought by the OLR. The OLR's misconduct [247]*247summary included a statement for each investigation as to whether restitution was sought. Those restitution statements were summarized in a chart attached to the OLR's recommendation in support of the petition for revocation by consent. The restitution chart showed that the OLR requested restitution awards in 45 of the 59 investigations it was conducting. Thus, Attorney Mutschler's statement in his petition indicates that he did not and does not contest a restitution award to some person or entity in those matters. In a number of cases, however, there remained some uncertainty over to whom a restitution award was owed because there was still a claim for reimbursement pending before the Wisconsin Lawyers' Fund for Client Protection (the Fund). Thus, it was not clear whether the restitution award should be granted in favor of the client or the Fund. The Fund has subsequently decided a number of those claims, clarifying the proper recipient of any restitution to be paid by Attorney Mutschler. The OLR has submitted updated restitution recommendations based on the decisions made by the Fund. Attorney Mutschler has not disputed those updated restitution recommendations, and we award restitution accordingly.

¶ 11. In one matter, client G.V and his mother T.S. asked this court to award restitution to them in the amount of the $13,500 that they had paid to Attorney Mutschler, although the OLR had not requested a restitution award in their matter.

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OLR v. Christopher A. Mutschler
2021 WI 47 (Wisconsin Supreme Court, 2021)

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Bluebook (online)
2011 WI 74, 804 N.W.2d 680, 336 Wis. 2d 241, 2011 Wisc. LEXIS 364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-lawyer-regulation-v-mutschler-wis-2011.