OLR v. Christopher A. Mutschler ( 2021 )

2021 WI 47SUPREME 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.
ATTORNEY MUTSCHLER REINSTATEMENT PROCEEDINGS
Reported at 388 Wis. 2d 486,933 N.W.2d 99PDC No:2019 WI 92 - Published
OPINION FILED: May 25, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam.
NOT PARTICIPATING:
KAROFSKY, J., did not participate.
ATTORNEYS:
2021 WI 47NOTICE
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
Complainant-Respondent, MAY 25, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Christopher A. Mutschler,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement granted.
¶1 PER CURIAM. We review a report filed by Referee Robert
E. Kinney recommending that the court reinstate the license of
Christopher A. Mutschler to practice law in Wisconsin. Since no
appeal has been filed from the referee's report and recommendation,
our review proceeds pursuant to Supreme Court Rule (SCR) 22.33(3).1
1SCR 22.33(3) provides: "If no appeal is timely filed, the
supreme court shall review the referee's report, order
reinstatement, with or without conditions, deny reinstatement, or
order the parties to file briefs in the matter."
No. 2010AP1939-D
After careful review of the matter, we adopt the referee's findings
of fact and conclusions of law and agree that Attorney Mutschler's
petition for reinstatement should be granted. As is our normal
practice, we also direct that the costs of this reinstatement
proceeding, which are $9,028.76 as of March 29, 2021, be paid by
Attorney Mutschler.
¶2 Attorney Mutschler was admitted to practice law in
Wisconsin in 1991 and practiced predominately in the area of
criminal traffic defense.
¶3 In 2011, this court accepted Attorney Mutschler's
petition for the consensual revocation of his Wisconsin law license
and ordered him to pay restitution totaling $246,723 within 180
days. At the time of his revocation, there were 59 grievances
pending against Attorney Mutschler. In virtually all of the cases,
Attorney Mutschler would obtain payment of an advanced fee to
represent a client in a traffic, operating while intoxicated, or
a criminal case. In re Disciplinary Proceedings Against Mutschler,
2011 WI 74, 336 Wis. 2d 241, 804 N.W.2d 680. Attorney Mutschler
would frequently advise the client to enter a no contest plea and
promised that he would win the case on appeal. In some cases,
Attorney Mutschler never notified the client of the scheduled
hearing on the pending charge or citation, so the client would
fail to appear. Sometimes Attorney Mutschler himself would fail
to appear at scheduled hearings, with the result being that a
default judgment was entered against the client. In other cases,
the client would enter a guilty or no contest plea, and Attorney
Mutschler would either fail to file an appeal or would fail to
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No. 2010AP1939-D
prosecute the appeal properly, which would lead to the appeal being
dismissed. Attorney Mutschler frequently failed to communicate
adequately with his clients, with the result being that many had
to either hire new counsel or proceed on their own without counsel.
¶4 In addition, in 2008, 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 arose from Attorney Mutschler being caught
in the act of forging prescription forms and using the forms to
obtain pain medication.
¶5 Attorney Mutschler filed his first petition for
reinstatement in 2017. The Office of Lawyer Regulation (OLR)
opposed the petition. After an evidentiary hearing, Referee
Jonathan V. Goodman stated that in his 11 years of handling OLR
cases, Attorney Mutschler's case posed the most difficult one the
referee had seen. Referee Goodman ultimately recommended that
this court deny Attorney Mutschler's petition for reinstatement
because of Attorney Mutschler's failure to have paid restitution
or to have established a plan to do so. Attorney Mutschler
appealed. This court concluded that the facts of record supported
the referee's determination that, "there 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." In re Reinstatement of Mutschler,
2019 WI 92, 388 Wis. 2d 486, 933 N.W.2d 99.
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No. 2010AP1939-D
¶6 Attorney Mutschler filed his second petition for
reinstatement on July 17, 2020. A hearing was held, via Zoom,
before the referee on January 28, 2021. The witnesses at the
hearing were Attorney Mutschler and K.D., a former client, who
retained Attorney Mutschler to represent him in a traffic offense
case in 2008 or 2009. At the hearing, Attorney Mutschler
apologized to K.D. K.D. testified that he paid Attorney Mutschler
$5,500, later found out that Attorney Mutschler had missed
deadlines in the case, which prompted K.D. to file a grievance
against Attorney Mutschler and required him to hire a new attorney
and pay him another $5,500. In spite of this unpleasant
experience, K.D. harbors no animosity toward Attorney Mutschler.
He testified at the hearing:
Everybody makes mistakes in life. Chris Mutschler was
a very nice guy when I met him. He went through some
hard times, I understand. . . . I'm not here to cut his
throat. I am here to say I would like reparations for
the money that was basically, kind of, stolen from me.
But after this many years if he wants to go back and
practice being a lawyer using his abilities that God
gave him, I'm not going to stand in the way. . . . I do
want to reiterate that everybody deserves a second
chance, and I don't think there's one of you guys sitting
on the panel that haven't made a mistake that you regret.
I accept Chris's apology and I hope you give him a second
chance.
¶7 By the time of the hearing, Attorney Mutschler had paid
$3,200 of restitution to the Wisconsin Lawyers' Fund for Client
Protection (the Fund). He testified that it would be very
difficult for him to locate many of his former clients, and he
knew if he paid the Fund there would be an unassailable track
record of his payments. Attorney Mutschler testified that the
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No. 2010AP1939-D
employment he has been able to obtain since his revocation has
paid de minimus wages and "there's just no way on $17,000 a year
I can pay everybody back that I need to pay as quickly as I need
to pay them." He said if his license is reinstated he has a job
waiting that will pay $65,000 a year to start, and that income
will allow him to significantly increase his payments, both in
terms of restitution and in terms of paying off his other debts.
¶8 The referee issued his report and recommendation on
March 9, 2021. The referee concluded that Attorney Mutschler has
satisfied the requirements for reinstatement of his license to
practice law in Wisconsin and recommends that his petition for
reinstatement be granted.
¶9 Supreme Court Rule 22.31(1) provides the standards to be
met for reinstatement.2 Specifically, the petitioner must show by
clear, satisfactory, and convincing evidence that he or she has
the moral character to practice law, that his or her resumption of
the practice of law will not be detrimental to the administration
of justice or subversive to the public interest, and that he or
she has complied with SCR 22.26 and the terms of the order of
suspension. In addition, SCR 22.31(1)(c) incorporates the
statements that a petition for reinstatement must contain pursuant
2 Effective January 1, 2021, substantial changes were made to
the rules pertaining to lawyer disciplinary procedures, including
the reinstatement rules, SCR 22.29 through 22.33. See S. Ct. Order
19-06, 19-07, 19-08, 19-09, 19-10, 19-11, and 19-12, 2020 WI
62 (issued June 30, 2020, eff. Jan. 1, 2021). Because this
reinstatement proceeding commenced prior to January 1, 2021,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to January 1, 2021.
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No. 2010AP1939-D
to SCR 22:29(4)(a)-(m). Thus, the petitioning attorney must
demonstrate that the required representations in the reinstatement
petition are substantiated.
¶10 When reviewing referee reports in reinstatement
proceedings, we utilize standards of review similar to those used
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 in fact 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.
¶11 The OLR did not dispute that Attorney Mutschler desires
to have his license reinstated; he has not practiced law during
the period of his revocation; he has maintained competence and
learning in the law by attendance at identified educational
activities; his proposed use of his license if reinstated was
appropriate; and he provided a full description of all business
activities during the period of revocation. The referee readily
agreed that Attorney Mutschler satisfied all of those
requirements.
¶12 Throughout the course of this reinstatement proceeding,
the OLR expressed concern about several of the reinstatement
criteria, and the referee discussed those issues at length in his
report. We will, likewise, discuss them in some detail. First,
the OLR contended that Attorney Mutschler made an inaccurate
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No. 2010AP1939-D
statement in his second reinstatement petition when he said,
"ultimately, the referee [in the first reinstatement proceeding]
concluded that the petitioner met the conditions except for [his
payment of and plans to pay restitution]." The OLR argued that by
making this statement, Attorney Mutschler engaged in conduct since
the revocation which has not been exemplary and above reproach.
Referee Kinney termed the OLR's position "a bridge too far." The
referee noted that Attorney Mutschler made the same argument in
his appeal from Referee Goodman's recommendation that his first
petition for reinstatement be denied, and this court referenced it
in its opinion by saying: "[i]n 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.'" Mutschler, 2019 WI
92, ¶11. The referee said not only did this court not criticize
Attorney Mutschler's reasoning in this regard, it did not expressly
say it disagreed with it. To the contrary, the referee said
Attorney Mutschler's statement appeared to be a fair
interpretation of Referee Goodman's report, which focused only on
the restitution issue in ultimately recommending that Attorney
Mutschler's bid for reinstatement be denied.
¶13 Second, the OLR argued that Attorney Mutschler's failure
to protect client files weighed against granting his reinstatement
petition. The referee noted that at one point Attorney Mutschler
was evicted from his law office and rented a storage unit into
which he placed items of property from his law office, including
10 to 15 client files. Attorney Mutschler did not have sufficient
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No. 2010AP1939-D
resources to pay the rental arrearages and as a result, in 2015 he
was subsequently barred from accessing the storage unit and its
contents were removed and disposed of.
¶14 The referee said in determining the seriousness of
Attorney Mutschler's breach of his duty to protect client files,
it was important to note that no client ever asked for the return
of a file. The referee opined that was not surprising given that
Attorney Mutschler specialized in drunk driving defense and the
typical file was likely to have contained little more than a copy
of a citation or a criminal complaint. The referee noted there
was unlikely to be any work product in the files because Attorney
Mutschler admitted in his consensual revocation proceeding that
because of his addiction he did little or nothing of value for his
clients during that time period. The referee also opined that the
contents of the files could have been readily replicated by
successor counsel obtaining copies from the court files or
prosecutors' offices. In addition, the referee stated that the
client files at issue dated back to 2008 to 2010, and under
standard Wisconsin dispositional guidelines, by 2015 those cases
would likely have been long since disposed of and the files
useless. The referee said attempting to retrieve the files would
have been a meaningless waste of time, and it was more prudent for
Attorney Mutschler to have prioritized his rent, child support
payments, and efforts to reinstate his driver's license rather
than spending money to retrieve old case files that were obsolete.
¶15 Third, the OLR expressed concern that Attorney Mutschler
had filed an unsigned affidavit of compliance in the first
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No. 2010AP1939-D
reinstatement proceeding. The referee noted that Attorney
Mutschler testified at the first reinstatement hearing that he had
made an inadvertent error and sent the wrong copy of the affidavit
along with his original reinstatement petition. He promptly
corrected the mistake. The referee noted that in its post hearing
brief, the OLR readily conceded this should not be a bar to
reinstatement.
¶16 Fourth, the OLR pointed out that when Attorney Mutschler
was asked to produce tax returns for 2015 to 2019, he failed to
produce returns for 2015 and 2016. The referee noted that in its
post hearing brief, the OLR acknowledged that Attorney Mutschler
was not employed during those years and presumably had no
reportable income.
¶17 Fifth, the OLR pointed out that Attorney Mutschler has
accumulated child support and maintenance arrears totaling over
$400,000 and this should be a relevant consideration as to whether
his conduct since his revocation has been exemplary. The referee
noted that Attorney Mutschler testified at the second
reinstatement hearing that at the time of his divorce, which he
termed "the absolute worse time in my life," he stipulated to child
support and maintenance of $3,400 or $3,500 per month, an amount
far beyond his means even at the time he agreed to it. Attorney
Mutschler testified, "I just stipulated because with the mind of
the depressive addict I thought I could do that." Attorney
Mutschler ultimately petitioned to reduce his child support and
maintenance obligations to $350 per month, but by the time he did
so, the amount of the arrearage was staggering. The referee notes
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No. 2010AP1939-D
that Wisconsin law prohibited the circuit court from retroactively
wiping out any arrears before Attorney Mutschler's motion for a
reduction in his obligations was filed. See Wis. Stat.
§ 767.59(1m). In addition, the referee points out that
§ 767.511(6) mandates that interest of one percent per month be
assessed on arrearage. As a result, the referee notes that each
month Attorney Mutschler makes a payment of $400 he falls further
behind by $3,600. The referee notes that the OLR concedes that
since May 2015, Attorney Mutschler has made his court order support
obligations by paying $400 per month.
¶18 Sixth, the OLR expressed concern about the amount of
Attorney Mutschler's personal debt. The referee notes that for
several years Attorney Mutschler has taken on no new debt and has
been able to repay much of the loan debt he owed to friends.
¶19 Seventh, the OLR expressed concern that for several
years Attorney Mutschler drove on a suspended driver's license.
The referee notes that Attorney Mutschler truthfully acknowledged
that since he did not have the money to pay off various traffic
tickets, his driver's license was suspended and he continued to
drive on a suspended license. However, the referee also notes
that Attorney Mutschler paid off all traffic fines years ago, took
the steps necessary to reinstate his driver's license, paid the
requisite reinstatement fee, and now drives legally.
¶20 Eighth, the OLR, as in the first reinstatement
proceeding, continued to express concern about Attorney
Mutschler's failure to pay much in the way of restitution.
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No. 2010AP1939-D
¶21 The referee said the eight concerns raised by the OLR
represent a very small part of the whole story in this case, and
while it is appropriate to reach back into a petitioner's past,
that must be done in a balanced way. The referee said during
Attorney Mutschler's 18 years of practice he rose to the pinnacle
of his profession, lectured regularly, wrote a treatise for the
State Bar and for the Wisconsin Impaired Driving Center at the
University of Wisconsin, authored and published dozens of
articles, and was called upon to testify before the Wisconsin
Legislature on four occasions regarding amendments to the traffic
code. The referee said the lifeblood of drunk driving defense is
motion practice, and Attorney Mutschler had an outstanding
reputation for thinking outside the box in crafting innovative
motions.
¶22 The referee said, "when the petitioner fell, he fell
hard." The referee pointed to Attorney Mutschler's testimony at
the first reinstatement hearing about his addiction to pain
medication, and he explained how he ultimately went about getting
sober. The referee also noted that Attorney Mutschler testified
at the second reinstatement hearing that the OLR summoned him to
appear for a meeting at their offices in Madison to discuss the 59
grievances that had been filed against him, and almost immediately
upon his arrival in Madison, Attorney Mutschler signed a petition
acknowledging that he could not successfully defend against the
allegations of misconduct and he agreed to the consensual
revocation of his law license.
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No. 2010AP1939-D
¶23 The referee said that during the time since his
revocation, Attorney Mutschler has lived an extremely frugal
existence; has maintained sobriety; has accepted very modest
employment opportunities; has kept current on his child support
obligation; and has acknowledged his wrongdoing and apologized to
his former clients. The referee said, "as much as he would like
to be able to do so, Mr. Mutschler cannot turn back the hands of
the clock." The referee said as a result of this proceeding,
Attorney Mutschler's life has become an open book. The referee
noted that the record contains six separate letters of
recommendation from Attorney Mutschler's former colleagues. The
referee said, "I have never previously read letters of
recommendation which were as strong and unequivocal, and in which
the authors had obviously taken so much time to carefully describe
the changes they had observed."
¶24 The referee notes that if reinstated, Attorney Mutschler
has a job waiting which will pay him a starting salary of $65,000.
Attorney Mutschler has indicated that $500 per month will be
automatically taken from his wages by wage assignment and paid
toward restitution, potentially benefitting dozens of his former
clients. The referee also notes that Attorney Mutschler will have
no involvement with billing or fees at the law firm and he will be
strictly handling a motion practice.
¶25 For all of these reasons, the referee found by clear,
satisfactory, and convincing evidence, that Attorney Mutschler has
met all of the criteria for reinstatement of his license to
practice law in Wisconsin.
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No. 2010AP1939-D
¶26 As noted, the OLR has not appealed the referee's
recommendation. Upon review of the record, we agree with the
referee that Attorney Mutschler has indeed established by clear,
satisfactory, and convincing evidence that he has satisfied all of
the criteria necessary for reinstatement.
¶27 As the referee noted, this court's denial of Attorney
Mutschler's first reinstatement petition focused on his failure to
make any restitution payments or have a repayment plan in mind.
Since his first reinstatement petition was denied, Attorney
Mutschler has made valiant efforts to begin paying restitution,
and although his meager income and other financial obligations,
including child support, have not allowed him to make much of a
dent in the amount owed, he has made a start, and it appears he
has done the best he could under the circumstances. As the referee
also noted, if Attorney Mutschler's license is reinstated, his
employer will automatically deduct $500 per month from his wages
to go toward restitution. With the possibility of salary increases
over time, reinstatement of Attorney Mutschler's license will give
him the capacity to whittle down his restitution obligations in a
way that would never be possible if he were precluded from resuming
his profession as an attorney. Accordingly, we adopt the referee's
findings of fact and conclusions of law, and we accept the
referee's recommendation that Attorney Mutschler's license to
practice law is Wisconsin should be reinstated. As is our standard
policy, we also find it appropriate to impose the full costs of
this proceeding on Attorney Mutschler.
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No. 2010AP1939-D
¶28 IT IS ORDERED that the license of Christopher A.
Mutschler to practice law in Wisconsin is reinstated, effective
the date of this order.
¶29 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 $9,028.76
as of March 29, 2021.
¶30 JILL J. KAROFSKY, J., did not participate.
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No. 2010AP1939-D
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