Office of Lawyer Regulation v. Michael D. Mandelman ( 2018 )

2018 WI 56
SUPREME COURT OF WISCONSIN
CASE NO.: 2003AP3348-D, 2004AP2633-D, 2007AP2653-D,
2011AP584-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Michael D. Mandelman, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Michael D. Mandelman,
Respondent-Appellant.
ON THE PETITION FOR REINSTATEMENT OF MANDELMAN
OPINION FILED: May 24, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J., dissents (opinion filed).
NOT PARTICIPATING: A.W. BRADLEY, J., did not participate.
ATTORNEYS:
2018 WI 56
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
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STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Michael D. Mandelman, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent,
MAY 24, 2018
v.
Sheila T. Reiff
Clerk of Supreme Court
Michael D. Mandelman,
Respondent-Appellant.
ATTORNEY reinstatement proceeding. Reinstatement denied.
¶1 PER CURIAM. We review, pursuant to Supreme Court
Rule (SCR) 22.33(3),1 a report filed by Referee James W. Mohr,
Jr., recommending the court reinstate the license of Attorney
1
SCR 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."
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Michael D. Mandelman to practice law in Wisconsin, with
conditions. The Office of Lawyer Regulation (OLR) did not
appeal the referee's recommendation. After fully reviewing this
matter, we conclude that Attorney Mandelman 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 Mandelman should be required to pay the
costs of this reinstatement proceeding, which were $7,674.57 as
of October 10, 2017.
¶2 The standards that apply to all petitions for
reinstatement after a disciplinary suspension or revocation are
set forth in SCR 22.31(1).2 In particular, the petitioning
2
SCR 22.31(1) provides:
(1) 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.
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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.
¶3 In addition, SCR 22.31(1)(c) incorporates the
statements that a petition for reinstatement must contain
pursuant to SCR 22.29(4)(a)-(k) and (4m).3 Thus, the petitioning
3
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.
(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.
(continued)
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attorney shall demonstrate that the required representations in
the reinstatement petition are substantiated.
¶4 When reviewing referee reports in reinstatement
proceedings, we utilize standards of review similar to those we
use 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 satisfied
the criteria for reinstatement, on a de novo basis. In re
Disciplinary Proceedings Against Jennings, 2011 WI 45, ¶39, 334
(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.
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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.
¶5 Attorney Mandelman was licensed to practice law in
Wisconsin in 1980. He has been the subject of seven
disciplinary proceedings. His license has been suspended or
revoked since 2006.
¶6 In 1990, Attorney Mandelman was suspended for one year
for 27 counts of misconduct that affected more than a dozen
clients. The complaint included misconduct from 1985 and
involved multiple counts of failing to act with diligence,
failing to promptly return files to clients, simultaneously
representing multiple clients with adverse interests, settling a
client's claim without authorization, failing to communicate
with clients, and making a misrepresentation to the former Board
of Attorneys Professional Responsibility (BAPR), In re
Disciplinary Proceedings Against Mandelman, 158 Wis. 2d 1, 460
N.W.2d 749 (1990). In this, Attorney Mandelman's first
disciplinary proceeding, the referee expressed concern about the
"pattern of a large number and repeated offenses over a period
of several years." This court commented that the misconduct
"establish[ed] a definite pattern of Attorney Mandelman's
disregard of very basic ethical obligations of lawyers." Id.
¶7 When that suspension ended, Attorney Mandelman
petitioned for reinstatement of his license. The court denied
his reinstatement petition on two grounds: additional
professional misconduct was discovered, including his post-
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suspension violation of the rules governing the handling of his
client trust account and, during the reinstatement proceeding
itself, he gave incomplete and evasive responses to the district
committee and to the BAPR.
¶8 In response to the additional professional misconduct,
the court suspended Attorney Mandelman's license for 18 months,
imposed consecutive to the termination of the earlier
suspension. In re Disciplinary Proceedings Against Mandelman,
182 Wis. 2d 583, 514 N.W.2d 11 (1994). That misconduct included
failing to act with diligence, failing to respond to clients'
requests for information, failing to refund a client's retainer,
violating the rules regarding trust accounts following his 1990
suspension, and failing to provide complete and accurate
responses to BAPR. Id.
¶9 In 1995, we reinstated Attorney Mandelman's license
with certain conditions that were intended to ensure that
Attorney Mandelman remained compliant with our rules.
Unfortunately, those conditions did not accomplish the desired
result.
¶10 In 1999, Attorney Mandelman received a consensual
private reprimand for making a false statement of fact to a
tribunal. Private Reprimand No. 1999-18 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
002085.html).
¶11 On December 12, 2003, the OLR filed a complaint
alleging 13 counts of misconduct. The parties litigated the
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case vigorously, and, in 2006, we suspended Attorney Mandelman
for nine months for multiple instances of misconduct, including
failing to act with reasonable diligence, failing to utilize a
written fee agreement in a medical malpractice case, and
persuading a client to sign a release of claims against him
without the client obtaining independent representation. In re
Disciplinary Proceedings Against Mandelman, 2006 WI 45, 290
Wis. 2d 158, 714 N.W.2d 512.
¶12 In 2006, Attorney Mandelman also received a separate
consensual private reprimand for drawing a check from his
business account to make a mortgage payment of a personal injury
client. Private Reprimand No. 2006-21 (electronic copy
available at https://compendium.wicourts.gov/app/raw/
001927.html).
¶13 In 2009, Attorney Mandelman, who had not been
reinstated, was suspended for one year for additional misconduct
that included collecting a fee without performing any work for
the client, failing to provide the client with a written
settlement statement, retaining a client's funds for more than
four years, making misrepresentations to a client, failing to
obtain a client's signature on a settlement check and failing to
deposit the settlement funds into the client trust account, and
failing to provide a client's file and funds to the client. In
re Disciplinary Proceedings Against Mandelman, 2009 WI 40, 317
Wis. 2d 215, 765 N.W.2d 788.
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¶14 On August 1, 2014, in the wake of the discovery of
still more misconduct, this court revoked Attorney Mandelman's
license to practice law, pursuant to a stipulation between
Attorney Mandelman and the OLR. In re Disciplinary Proceedings
Against Mandelman, 2014 WI 100, 358 Wis. 2d 179, 851 N.W.2d 401.
The misconduct in the revocation proceeding involved 22 counts
of misconduct for Attorney Mandelman's handling of trust
accounts and funds, including commingling personal and business
funds with client trust funds, converting client trust funds by
engaging in trust account transactions that left negative
balances in his own subsidiary accounts, failing to deliver
trust funds to a client over a period of years, failing to keep
complete and accurate trust account records, and on multiple
occasions, filing income tax returns that were false. Attorney
Mandelman's misconduct also included lack of diligence in a
matter, failing to notify a client of his suspension in another,
and providing a false affidavit to the OLR. Id.
¶15 The revocation was made retroactive to May 29, 2009,
the effective date of a prior one-year suspension from which
Attorney Mandelman had not been reinstated. Accordingly, he was
immediately eligible to file a reinstatement petition, and he
did so on August 5, 2014.
¶16 We denied that petition. In re Disciplinary
Proceedings Against Mandelman, 2015 WI 105, 365 Wis. 2d 457, 871
N.W.2d 682. We observed:
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The scope and seriousness of Attorney Mandelman's
prior misconduct reveals a lawyer who lacked a proper
understanding of and attitude toward the standards
that are imposed upon members of the bar.
. . .
Attorney Mandelman has accepted responsibility for his
misconduct, but the mitigating effect of his
acceptance of responsibility must be viewed in
relation to his extensive disciplinary history along
with the number of counts and the nature of his
misconduct. The hard work Attorney Mandelman has
undertaken to restructure his life and pay past due
obligations to clients, creditors, and the court
system is commendable, but not sufficient to
demonstrate that reinstatement is appropriate at this
time. He has cleaned up his act; now he must stay the
course. This record lacks sufficient evidence that
things will be different if he is reinstated to the
practice of law again.
¶17 On March 21, 2017, Attorney Mandelman filed a second
petition for the reinstatement of his license to practice law in
Wisconsin. The OLR filed a response on July 31, 2017, stating
that it did not oppose Attorney Mandelman's reinstatement but
recommended that if reinstated, his practice be subject to
certain conditions.
¶18 The referee conducted a public hearing on August 31,
2017. Attorney Mandelman testified on his own behalf and called
seven additional witnesses, including four attorneys, an
architect, an employer, his faculty advisor, and a friend who
credits Attorney Mandelman with offering her emotional support
and encouraging her to obtain treatment.4 The referee noted that
4
Several additional letters supporting Attorney Mandelman's
petition were also received into evidence.
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many of these witnesses were not aware of Attorney Mandelman's
prior disciplinary problems, but all spoke to his current
demeanor and felt that he was intelligent, hard-working,
responsible, and trustworthy. The referee described their
testimony in support of Attorney Mandelman's reinstatement as
"honest and sincere." The referee filed his report on
September 20, 2017, recommending conditional reinstatement.
¶19 Many of the criteria we consider in reinstatement
proceedings focus on what the lawyer has done since suspension
or revocation. The referee found, and we agree, that Attorney
Mandelman has satisfied these criteria. The referee found that
Attorney Mandelman had proven by clear and convincing evidence
that he sincerely 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); that
he has complied with the terms of the suspension and revocation
orders, SCR 22.29(4)(c);5 that he has maintained competence and
learning in the law, SCR 22.29(4)(d);6 that his conduct since the
5
The referee noted that Attorney Mandelman has not yet paid
the entire amount of costs owed to the OLR, but he has executed
an installment agreement and is making payments as his resources
permit. As the referee noted, Attorney Mandelman's level of
debt is a concern but that, alone, would not preclude his
reinstatement.
6
The referee noted that Attorney Mandelman is compliant
with his CLE requirements, has completed a number of CLE
courses, and has taken and successfully passed the Multistate
Professional Responsibility Examination.
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revocation has been exemplary and above reproach,
SCR 22.29(4)(e);7 and that he has complied with the
SCR 22.26(1)(e) affidavit, SCR 22.29(4)(h). In addition,
Attorney Mandelman outlined his activities during his suspension
and revocation as required by SCR 22.29(4)(k),8 and stated that
if reinstated, he wants to engage in the practice of civil
litigation and work for a law firm or organization and to
specialize in construction law, as required by SCR 22.29(4)(j).
The referee found, further, that Attorney Mandelman has made
restitution to or satisfied all claims of persons injured or
harmed by his misconduct, as required by SCR 22.29(4)(4m).
¶20 We accept the referee's findings and conclusions on
these requirements for reinstatement.
¶21 As the referee discerned, our concern in this
reinstatement proceeding relates to whether Attorney Mandelman
7
The referee noted that Attorney Mandelman's conduct has
been exemplary both in avoiding any inappropriate behavior, and
in affirmatively seeking employment, while at the same time
helping others.
8
Attorney Mandelman obtained a master's degree and as of
the date of the reinstatement hearing had nearly completed a PhD
in architecture at the University of Wisconsin-Milwaukee. He
has cared for an ailing mother, worked in a computer lab for the
architecture department, assisting students by troubleshooting
problems with computer equipment, and worked closely with
department faculty and staff members. He has been a property
manager, taught classes to high school students, has been
employed as a staff architect, worked at other part time jobs,
and has assisted others in a counseling role.
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has the moral character to practice law in this state,
SCR 22.31(1)(a); whether the resumption of his practice would be
detrimental to the administration of justice or subversive of
the public interest, SCR 22.31(1)(b); whether he has a proper
understanding of and attitude toward the standards that are
imposed upon members of the bar and will act in conformity with
them, SCR 22.29(4)(f); and whether he can be safely recommended
as a person fit to represent clients and to aid in the
administration of justice in this state, SCR 22.29(4)(g).
¶22 The referee acknowledged the difficulty inherent in
these assessments. He observed:
No one can predict the future - certainly not this
Referee. The judgment that is asked to be made is an
intuitive one, based upon observation of witnesses,
common sense and experience.
I believe everyone lives with the hope that people can
change themselves, and if they do, they are perhaps
entitled to a second chance.
After giving this matter a great deal of thought, and
for the following reasons, I believe that time has
arrived for Mr. Mandelman. I believe he has earned
the right to resume practicing law, subject to a
number of recommended restrictions, set forth below.
¶23 The referee concluded that Attorney Mandelman had met
his burden of proof on these factors such that reinstatement,
albeit conditional reinstatement, was appropriate. See
Referee's Report at 14-15, Findings of Fact (FF) 18, FF 20-21
and Conclusions of Law (CL) 9-11.
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¶24 We benefit from the referee's findings and
conclusions, particularly when, as here, the referee has
provided us with such a thoughtful and well-structured report.
The ultimate determination of who may practice law in Wisconsin
however, remains with this court. We disagree with these
specific findings and we reach a different conclusion of law
with respect to SCRs 22.29(4)(f)-(g) and 22.31(1)(a)-(b).9
¶25 These criteria require us to undertake a comprehensive
assessment of the lawyer and this includes consideration of the
nature of the lawyer's underlying misconduct. See In re
Disciplinary Proceedings Against Hersh, 108 Wis. 2d 450, 321
N.W.2d 927 (1982). In In re Disciplinary Proceedings Against
9
Specifically, we reject FF 18 (finding that "Mandelman now
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 in the future"); FF 20 (finding
that "Mandelman 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 court"); and FF 21 (finding "Mandelman presently
has the moral character to practice law in Wisconsin and that
his resumption of the practice of law, under the conditions set
forth below, will not be detrimental to the administration of
justice or subversive of the public interest").
We reach a different conclusion of law than the referee
with respect to CL 9 (concluding that "Mandelman has therefore
satisfied the requirements of SCR 22.29(4)(f)"); CL 10
(concluding that "Mandelman therefore satisfied the requirements
of SCR 22.29(4)(g)"); CL 11 (concluding that "Mandelman has
satisfied the requirements of SCR 22.31(1)(a) and (b)").
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Penn, 2002 WI 5, ¶8, 249 Wis. 2d 667, 638 N.W.2d 287, this court
held:
[T]he referee conducting a hearing on the petition for
reinstatement must engage in a full and unrestricted
evaluation of the petitioner's past, present, and
predicted future behavior, as well as any other
relevant information going to the issue of whether the
petitioner has the moral character to practice law in
this state and whether his or her resumption of the
practice of law would be detrimental to the
administration of justice or subversive to the public
interest.
¶26 From Attorney Mandelman's very first disciplinary
proceeding in 1990, we observed a "definite pattern of Attorney
Mandelman's disregard of very basic ethical obligations of
lawyers." Since then, Attorney Mandelman has come before this
court many times, each time having committed serious misconduct
that affected numerous clients and encompassed not only neglect,
but dishonesty and fraud. In 1995, we tried conditional
reinstatement. It failed. Five disciplinary proceedings
ensued, culminating in Attorney Mandelman's license revocation.
¶27 As a result of his pervasive, serious, and very
troubling pattern of misconduct, Attorney Mandelman has created
a heavy burden for himself. We conclude that Attorney Mandelman
has failed to meet his burden to prove to this court that he
possesses the requisite moral character to practice law in this
state, that he has a proper understanding of and attitude toward
the standards imposed upon members of the bar, that he will act
in conformity with those standards, and that he can be safely
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recommended as a person fit to be consulted by others, to
represent them, and to otherwise act in matters of trust and
confidence. See SCR 22.29(4)(f) and (g).
¶28 Moreover, we cannot say, with certainty, that the
passage of time alone will be sufficient to persuade us that
Attorney Mandelman will practice law in a manner that is honest,
ethical, and above reproach.
¶29 We recognize that our holding today will leave
Attorney Mandelman asking what else he can do to persuade this
court to reinstate his law license. We recognize that he cannot
undo his past misconduct. This conundrum does not mean,
however, that this court is somehow compelled to reinstate his
license. An attorney whose license was suspended or revoked for
misconduct has no right to reinstatement. Lathrop v. Donohue,
10 Wis. 2d 230, 237, 102 N.W.2d 404, 408 (1960) (observing that
the practice of law is not a right but a privilege). Nothing in
our prior attorney disciplinary decisions implies that a
petitioner for reinstatement enjoys a presumption of
rehabilitation upon the expiration of a specified term of
suspension, much less revocation. In re Disciplinary
Proceedings Against Hyndman, 2002 WI 6, ¶4, 249 Wis. 2d 650, 638
N.W.2d 293.
¶30 This assessment is not intended to be punitive.
Attorney Mandelman deserves much credit for his impressive
accomplishments and we have every confidence that he has the
capacity to flourish and succeed in other professional and
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personal endeavors. Rather, the primary justification for the
moral character requirement embodied in our reinstatement rules
is to protect the public, the courts, and the legal profession.
Any doubt concerning a lawyer's moral character should be
resolved in favor of protecting the public by denying the
petition for reinstatement.
¶31 With respect to the costs of this reinstatement
proceeding, it is this court's general practice to assess the
full costs of a proceeding against a respondent. See
SCR 22.24(1m). We find no extraordinary circumstances that
would warrant a reduction in the costs imposed and we find it
appropriate to assess the full costs of the reinstatement
proceeding against Attorney Mandelman.
¶32 IT IS ORDERED that the petition for reinstatement is
denied.
¶33 IT IS FURTHER OREDERED that within 60 days of the date
of this order, Michael D. Mandelman shall pay to the Office of
Lawyer Regulation the costs of this proceeding, which are
$7,674.57 as of October 10, 2017.
¶34 ANN WALSH BRADLEY, J., did not participate.
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¶35 SHIRLEY S. ABRAHAMSON, J. (dissenting). I dissent
because I conclude that the court is not consistent in its
rulings on reinstatements. See Petition for Readmission After
Voluntary Resignation of Keith B. Daniels, Jr., unpublished
order (Apr. 20, 2018) (Ann Walsh Bradley, J., dissenting)
(highlighting the court's failure to explain inconsistent
results of two similarly situated petitioners). The court's
failure to properly explain its inconsistent decisions raises
due process concerns.
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