Office of Lawyer Regulation v. Christopher E. Meisel

2017 WI 40SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP463-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Christopher E. Meisel, Attorney at Law:
Office of Lawyer Regulation,
Complainant-Respondent,
v.
Christopher E. Meisel,
Respondent-Appellant.
DISCIPLINARY PROCEEDINGS AGAINST MEISEL
OPINION FILED: April 26, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 11, 2017
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant there were briefs filed by
Terry E. Johnson and Peterson, Johnson & Murray, S.C.,
Milwaukee, and oral argument by Terry E. Johnson.
For the Office of Lawyer Regulation a brief was filed by
Matthew J. Price and Foley & Lardner LLP, Milwaukee, and oral
argument by Matthew J. Price.
2017 WI 40NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP463-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Christopher E. Meisel, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant-Respondent, APR 26, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
Christopher E. Meisel,
Respondent-Appellant.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. Attorney Christopher E. Meisel has
appealed Referee Hannah Dugan's recommendation that his license
to practice law in Wisconsin be suspended for two years for 15
counts of misconduct, which included converting approximately
$175,000 from two estates and two guardianship proceedings.
Attorney Meisel stipulated to all counts of misconduct but
asserts that, rather than a two-year suspension, a five-month
suspension of his law license is an adequate sanction.
No. 2015AP463-D
¶2 Upon careful review of this matter, we uphold the
referee's findings of fact and conclusions of law. We conclude,
however, that rather than a two-year suspension, Attorney
Meisel's license to practice law should be suspended for 18
months. We further agree with the referee that Attorney Meisel
should be required to pay the full costs of this proceeding,
which are $10,831.67 as of February 7, 2017. Although the
referee recommended that various conditions be imposed upon
Attorney Meisel, we find that the imposition of conditions would
be better addressed in a future reinstatement proceeding.
¶3 Attorney Meisel was admitted to practice law in
Wisconsin in 1994. He has no prior disciplinary history. In
October of 2006, Attorney Meisel was diagnosed with brain cancer
and days later underwent brain surgery to remove a tumor.
Following surgery, he received chemotherapy and radiation
treatments, which treatments continued until 2008. Although his
condition is currently stable, Attorney Meisel will require
constant monitoring. He is not able to work long hours. While
prior to his brain surgery he was earning over $100,000 per
year, in recent years he has earned approximately $45,000 per
year.
¶4 In 2008 Attorney Meisel and his wife decided to pursue
international adoption of two children from Guatemala. One of
the children was later diagnosed with a number of medical
issues, including significant brain formation issues, legal
blindness, and learning disabilities. In order to provide that
child with the resources she needed, the family moved from the
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No. 2015AP463-D
school district in which they were living to a different school
district that they believed had better resources to educate the
child. The purchase price of the home in the new school
district was $125,000 more than the price of the house the
family sold.
¶5 In addition to his personal health problems and the
medical issues of his daughter, Attorney Meisel was also under
financial distress due to a real estate business called King
Park Investment Company, LLC, (King Park), which he owned with
another man. King Park is a real estate venture in the
Marquette University area in Milwaukee.
¶6 The Office of Lawyer Regulation (OLR) filed its 15
count complaint against Attorney Meisel on March 10, 2015.
Counts one through three of the complaint arose out of Attorney
Meisel's handling of the estate of B.T., who died in October
2008. Attorney Meisel was retained to handle the estate and
pursue a potential wrongful death claim. In June 2009, he filed
a petition for special administration of the estate in Milwaukee
County Circuit Court. Following a settlement of the wrongful
death claim, in March 2011 Attorney Meisel filed a petition for
formal administration of the estate. The OLR's complaint
alleged that Attorney Meisel disbursed numerous checks from his
trust account for the benefit of King Park from funds belonging
to the estate.
¶7 The specific counts of misconduct alleged in the
complaint arising out of B.T.'s estate were as follows:
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No. 2015AP463-D
Count 1: By failing to hold $50,003.29 in trust
belonging to the Estate of B.T., Attorney Meisel
violated SCR 20:1.15(b)(1).1
Count 2: By converting to his own purposes $50,003.29
in trust funds belonging to the estate of B.T.,
Attorney Meisel violated SCR 20:8.4(c).2
Count 3: By depositing $47,244.20 in personal and law
firm funds into his trust account in April 2012, to
replace the bulk of the funds that he had converted
from the B.T. Estate, Attorney Meisel violated SCR
20:1.15(b)(3).3
¶8 Counts 4 through 14 of the OLR's complaint arose out
of Attorney Meisel's appointment as guardian of the estates of
D.C. and Y.M., step-sisters whose parents died in an automobile
accident in February of 2006. D.C. was five years at the time
1
Effective July 1, 2016, substantial changes were made to
Supreme Court Rule 20:1.15, the "trust account rule." See S. Ct.
Order 14-07, (issued Apr. 4, 2016, eff. July 1, 2016). Because
the conduct underlying this case arose prior to July 1, 2016,
unless otherwise indicated, all references to the supreme court
rules will be to those in effect prior to July 1, 2016.
SCR 20:1.15(b)(1) provides:
A lawyer shall hold in trust, separate from the
lawyer's own property, that property of clients and
3rd parties that is in the lawyer's possession in
connection with a representation. All funds of clients
and 3rd parties paid to a lawyer or law firm in
connection with a representation shall be deposited in
one or more identifiable trust accounts.
2
SCR 20:8.4(c) provides: "It is professional misconduct
for a lawyer to engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."
3
SCR 20:1.15(b)(3) provides: "No funds belonging to the
lawyer or law firm, except funds reasonably sufficient to pay
monthly account service charges, may be deposited or retained in
a trust account."
4
No. 2015AP463-D
of the accident, and Y.M. was close to one year old. A
Milwaukee County probate court commissioner appointed Attorney
Meisel as guardian of the girls' estates in October 2007.
Attorney Meisel established separate guardianship accounts for
the children.
¶9 Pursuant to Wis. Stat. § 54.62, a guardian is required
to file with the court an annual accounting for a guardianship
prior to April 15 of the following year. Amy Wochos, legal
counsel and senior administrator for the Milwaukee County Clerk
of Circuit Court, testified at the evidentiary hearing before
the referee that she oversees filings in probate court. She
testified that in 2013 she became aware that an order to show
cause had been issued against Attorney Meisel by the probate
court because he had failed to file the annual accountings for
the children's guardianship.
¶10 Ms. Wochos testified that in early 2014 Attorney
Meisel came to the probate office and asked to speak with her.
She said Attorney Meisel indicated he had taken money from the
minor guardianship accounts, that he had self-reported this
behavior to the OLR, and that he had either put the money back
or was in the process of putting it back and understood he
needed to be relieved of his duties as guardian for the girls.
Attorney Meisel converted money from the estate of J.D. to
replace the funds he took from the guardianship accounts.
¶11 OLR's complaint alleged the following counts of
misconduct with respect to the two guardianship proceedings and
the second estate proceeding:
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No. 2015AP463-D
Count 4: By failing to hold as much as $21,000 in the
D.C. Account at times between March 2009 and November
2012, Attorney Meisel violated SCR 20:1.15(j)(l).4
Count 5: By converting and re-converting D.C.
Guardianship funds to his own purposes between March
2009 and March 2012, Attorney Meisel violated SCR
20:8.4(c).
Count 6: By depositing into the D.C. Account
$57,800.61 in King Park funds and funds converted from
his trust account and the Estate of J.D., Attorney
Meisel violated SCR 20:1.15(j)(l).
Count 7: By depositing into the D.C. Account
$57,800.61 in King Park funds and funds converted from
his trust account and the Estate of J.D., thereby
concealing his conversion and re-conversion of funds
belonging to D.C., Attorney Meisel violated SCR
20:8.4(c).
Count 8: By failing to hold as much as $21,455.25 in
the Y.M. Account between March 2009 and November 2012,
Attorney Meisel violated SCR 20:1.15(j)(l).
Count 9: By converting and re-converting Y.M.
Guardianship funds to his own purposes between March
2009 and March 2012, Attorney Meisel violated SCR
20:8.4(c).
Count 10: By depositing into the Y.M. Account
$70,056.12 in King Park funds and funds converted from
his trust account and the Estate of J.D., Attorney
Meisel violated SCR 20:1.15(j)(1).
4
SCR 20:1.15(j)(l) provides:
A lawyer shall hold in trust, separate from the
lawyer's own funds or property, those funds or that
property of clients or 3rd parties that are in the
lawyer's possession when acting in a fiduciary
capacity that directly arises in the course of, or as
a result of, a lawyer-client relationship or by
appointment of a court.
6
No. 2015AP463-D
Count 11: By depositing into the Y.M. Account
$70,056.12 in King Park funds and funds converted from
his trust account and the Estate of J.D., thereby
concealing his conversion and re-conversion of funds
belonging to Y.M., Attorney Meisel violated SCR
20:8.4(c),
Count 12: By filing annual accountings with the
Milwaukee County Probate Court for the D.C. and Y.M.
Guardianships, which failed to disclose the
disbursements that he made from those guardianships
and included documentation of account balances that
had been deliberately, and temporarily, inflated to
document the required balances and conceal his
conversions, Attorney Meisel violated SCR
5
20:3.3(a)(l).
Count 13: By failing to hold as much as $31,201.48 in
the fiduciary account for the Estate of J.D., Attorney
Meisel violated SCR 20:1.15(j)(1).
Count 14: By converting to his own purposes as much
as $31,201.48 in the fiduciary account for the Estate
of J.D., Attorney Meisel violated SCR 20:8.4(c).
¶12 Count 15 of the OLR's complaint alleged:
Count 15: By failing to maintain a transaction
register and client ledgers with running balances, and
by failing to perform monthly reconciliations of his
trust account, thereby failing to maintain complete
records of a trust account, Attorney Meisel violated
SCR 20:1.15(f)(l)a., (f)(l)b., and f(i)g.6
5
SCR 20:3.3(a)(l) provides: "A lawyer shall not knowingly
make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously
made to the tribunal by the lawyer."
6
SCR 20:1.15(f)(l)a provides:
The transaction register shall contain a
chronological record of all account transactions, and
shall include all of the following:
(continued)
7
No. 2015AP463-D
1. the date, source, and amount of all deposits;
2. the date, check or transaction number, payee
and amount of all disbursements, whether by check,
wire transfer, or other means;
3. the date and amount of every other deposit or
deduction of whatever nature;
4. the identity of the client for whom funds were
deposited or disbursed; and
5. the balance in the account after each
transaction.
Section 20:1.15(f)(1)b provides:
A subsidiary ledger shall be maintained for each
client or 3rd party for whom the lawyer receives trust
funds that are deposited in an IOLTA account or any
other pooled trust account. The lawyer shall record
each receipt and disbursement of a client's or 3rd
party's funds and the balance following each
transaction. A lawyer shall not disburse funds from an
IOLTA account or any pooled trust account that would
create a negative balance with respect to any
individual client or matter.
. . .
Section 20:1.15(f)(1)g provides:
For each trust account, the lawyer shall prepare
and retain a printed reconciliation report on a
regular and periodic basis not less frequently than
every 30 days. Each reconciliation report shall show
all of the following balances and verify that they are
identical:
1. the balance that appears in the transaction
register as of the reporting date;
2. the total of all subsidiary ledger balances
for IOLTA accounts and other pooled trust accounts,
determined by listing and totaling the balances in the
(continued)
8
No. 2015AP463-D
¶13 Attorney Meisel filed an answer to the complaint in
April 2015. In December of 2015, Attorney Meisel and the OLR
entered into a stipulation whereby Attorney Meisel withdrew his
answer to the complaint and pled no contest to each allegation
of misconduct set forth in the complaint. The parties agreed
that the complaint could serve as the factual basis for the
referee's determination of misconduct and the referee's
recommendation as to discipline. The parties further agreed
that the evidentiary hearing would be limited to taking
additional evidence and argument to facilitate the referee's
recommendation to this court as to the appropriate amount of
discipline. The OLR's complaint had sought a three-year
suspension of Attorney Meisel's law license.
¶14 The evidentiary hearing took place on January 25,
2016. In addition to Amy Wochos, Heather Coning, an insurance
and bonding agent, and Attorney Meisel testified in person.
Dr. Mark G. Malkin testified by telephone.
¶15 Attorney Meisel testified that if he were to lose his
license to practice law for two or three years, he did not
believe he would ever be able to return to the practice of law.
individual client ledgers and the ledger for account
fees and charges, as of the reporting date; and
3. the adjusted balance, determined by adding
outstanding deposits and other credits to the balance
in the financial institution's monthly statement and
subtracting outstanding checks and other deductions
from the balance in the monthly statement.
9
No. 2015AP463-D
When asked by the referee about his conversion of the funds,
Attorney Meisel said:
I did it. It was wrong. The whole world was in a
fog. I know I did it – it was wrong. I was bonded at
all times. I'm not making a justification for it, but
I didn't think it would come to a problem. . . .
I knew I did it. I have never denied that. Why?
It's hard to say. I was juggling so many things that
I just did it without really thinking, you know. I
just figured that money would be coming in or – I
don't know. It was dumb.
¶16 Dr. Malkin's December 31, 2015, letter/report to
Attorney Terry E. Johnson, Attorney Meisel's counsel in this
matter, was received into evidence at the hearing. The letter
indicates that Dr. Malkin was Attorney Meisel's attending neuro-
oncologist from November 2006 through August 2013, at which time
Dr. Malkin relocated from Milwaukee to Richmond, Virginia.
Dr. Malkin's report explains Attorney Meisel's medical history.
Dr. Malkin said:
I am aware, from conversations with Mr. Meisel's
attorneys, of some of the circumstances surrounding
the fiscal decisions Mr. Meisel made which have
resulted in the disciplinary proceedings brought
against him. I am aware that he missed time from work
which would have left him with less time and more
stress to complete the work which he had taken on. I
am aware that he turned away clients because he could
not keep up with the case load to which he had been
accustomed before he became ill. I am aware that his
practice declined, adding financial burden and stress.
I am aware that certain real-estate investments were
devalued, and that he fell out with his partner,
adding further stress. I am aware that he did not
share these concerns at work with his wife, and he
certainly didn't with me. I am aware that he was not
willing to seek professional help to manage distress.
Under these circumstances anybody would have been
10
No. 2015AP463-D
overwhelmed, and certainly Mr. Meisel was especially
susceptible to making errors in judgment as a
maladaptive strategy to deal with the multiple
stressors, given his medical history, the medications
he was on, and the permanent damage to his brain from
the tumor and treatment thereof. It was a 'perfect
storm'. . . .
All of us are subject to stress, and much of this
stress is external and beyond our control. Mr. Meisel
is no different. However, his brain tumor and the
treatment thereof created brain damage that
predisposed him to inappropriate, non-constructive
cognitive responses to stress. I cared for Mr. Meisel
for almost seven years, and therefore I believe I know
him quite well. I believe the behavior that led to
the inappropriate fiscal decisions that he made was an
aberration and not likely to repeat itself. That
said, it is my recommendation that he undergo a
comprehensive neuropsychological evaluation, . . .. I
recommend that he receive formal psychotherapy to help
him manage stress in a constructive way, . . ..
Finally, I recommend that Mr. Meisel continue to be
followed on a scheduled basis by a neuro-oncologist
with MRI scans of the brain to monitor his brain tumor
status, . . ..
¶17 In his telephone testimony at the evidentiary hearing,
Dr. Malkin said:
Well, I would sum it up by saying that we have a
situation here where, beyond the usual stressors in
anyone's life, Mr. Meisel was affected by a
potentially fatal brain tumor, which necessitated
surgery to remove the tumor and part of the
surrounding brain, radiation therapy, which affected
the brain volume and function, chemotherapy, and other
medications to control symptoms of the brain tumor,
like seizures, and the stressors, like anxiety and
depression, are associated with this diagnosis and
treatment, all of which conspired to create a perfect
storm such that his injured brain, under extreme
stress, has reacted to a situation, his judgment was
affected, and he made a financial decision which I'm
sure he regrets.
11
No. 2015AP463-D
¶18 When asked by Attorney Meisel's counsel whether those
opinions were held to be true to a reasonable degree of medical
probability, Dr. Malkin answered in the affirmative.
¶19 On cross-examination by the OLR's counsel, the
following exchange occurred:
Q: Can you state to a reasonable degree of medical
probability that Mr. Meisel's medical conditions
relating to the brain tumor caused him to repeatedly
convert trust funds, and reconvert trust funds, over a
three-year period?
A: Yes
Q: And what's the basis for that conclusion?
A: The basis is that the damage we are looking at on
the MRI scan of 2011 is permanent damage. It's never
going to change. It will always look at least that
bad. It's a static problem, not one that evolved
overnight nor one that is ever going to get better.
So it stands to reason that this impaired brain will
be susceptible, or predisposed, as I wrote, to making
the same error in judgment, or memory, or executive
function over and over again.
Q: But being predisposed to doing something is
different than causing it to happen, right? They're
not necessarily the same thing, you testified to?
A: Correct.
Q: Okay. So not everyone who is predisposed to
alcoholism, for example, becomes an alcoholic,
correct?
A: That's correct.
Q: So on one hand in your report we talked about the
predisposed section, and you testified in response to
Mr. Johnson's question that the – the damage is
permanent, it's not going to change, but then in the
last paragraph of your report, the – the fourth
sentence of the last paragraph on your report you
12
No. 2015AP463-D
state, 'I believe the behavior that led to the
inappropriate fiscal decisions that he made was
aberration and not likely to repeat itself.' Did you
put that statement in your report?
A: Yes, I did.
Q: So how can you on one hand tell us that he's
predisposed to engaging in these activities, and has
engaged in these activities, the damage is permanent,
and things are not likely to improve, yet in the next
paragraph you're telling us presumably what you
believe to a medical – high degree of medical
probability, that he's not likely to re-engage in the
same conduct? How do you reconcile that?
A: The reconciliation is based upon the fact that Mr.
Meisel is not under anywhere near the kind of stress
that he was under when these events occurred. His
tumor is in remission. It is not impossible that it
won't come back, but it is unlikely. That's number
one.
As his attorney has just told all of us, his financial
situation is more stable, his child situation is more
stable. These are important stressors which were in
effect at the time but no longer operable.
And at the time, despite this predisposition, Mr.
Meisel did not avail himself of the kind of support
and professional help that might have prevented him,
given this predisposition, from acting in the way he
did.
Now, if Mr. Meisel didn't do anything about his
stress, and ignored recommendations to find
constructive ways to manage stress, then I would say
there would be a concern that it could happen in the
future.
But I think the circumstances of his life now are very
different than they were then. And – and that's how I
would reconcile the two paragraphs.
Q: But as I understand it, your position that it's
not likely to recur, the behavior – the inappropriate
behavior is not going to recur, is largely based upon
the reduction of stress in Mr. Meisel's life, correct?
13
No. 2015AP463-D
A: That is correct.
Q: But –
A: I don’t think we should underestimate the
importance of that. I really don't.
Q: Okay. Accepting that, wouldn't the opposite then
be true, that if the stress – if the high level of
stress returned to his life, we should reasonably
expect that he's predisposed to commit the same
misconduct that he did previously?
A: We should be concerned about that risk and do what
can be done to prevent that. And that is why I
recommend the neuropsych evaluation, to better
understand it, and to objectify it, and the
psychotherapy intervention.
Because the stress that comes into our lives is not
always under our control. Sometimes we bring it upon
ourselves, but more often than not it's an external
thing. And that needs to be managed. That's the
missing link in Mr. Meisel's care.
¶20 The parties filed post-hearing briefs regarding the
appropriate sanction. The referee filed her report and
recommendation on July 15, 2016. The referee said Attorney
Meisel's violations of supreme court rules were made more
egregious because 11 counts involved the guardianship of funds
of orphaned children. The referee also said the three counts
related to the B.T. estate reflected a serious breach of trust
to the estate beneficiaries and to the court. The referee
acknowledged:
The confluence of personal and medical matters
Attorney Meisel faced beginning in 2006 were
substantial, life-changing. The long term cognitive
effects of the brain cancer and treatments are
balanced sympathetically in favor of Attorney Meisel,
for misconduct that would otherwise call for a much
greater sanction, especially because the actual
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No. 2015AP463-D
misconduct did not occur until he returned to active
practice a couple of years later.
The misconduct related to sustaining the King Park
project is not viewed as sympathetically; options in
handling the business partnership were available and
the nature of that business deal is not so compelling
as to warrant much mitigation for substantial
misconduct involving substantial conversions.
Additionally, it cannot go without note that Attorney
Meisel presented his defenses regarding his misconduct
in matters he handled which affected only these four
vulnerable people and estates; even while during the
same time period he carried forth on other client
matters without engaging in similar misconduct.
¶21 As part of her report, the referee discussed in detail
the American Bar Association's standards for imposing lawyer
sanctions. With respect to aggravating factors, the referee
found that Attorney Meisel demonstrated a dishonest or selfish
motive since he used converted client funds for his own personal
benefit. The referee also found a pattern of misconduct in that
Attorney Meisel's repeated conversions and unreported
replenishments of the money occurred over a three-year period,
involved four separate matters – two vulnerable wards and two
estates over which he had exclusive control – and eventually
were determined to total more than $175,000. The referee noted
that Attorney Meisel's conduct involved multiple offenses. She
said that Attorney Meisel had substantial experience in the
practice of law, having practiced for almost 15 years when he
first converted funds.
¶22 The referee also found a number of mitigating factors,
including Attorney Meisel's lack of a prior disciplinary record;
his significant personal and emotional problems; the fact that
15
No. 2015AP463-D
he made full restitution to the clients from which he converted
funds; the fact that he was cooperative during the OLR
proceedings and eventually entered into a stipulation; and the
fact that he expressed remorse for his misconduct.
¶23 Although the OLR included physical and mental
disability in its list of mitigating factors, the referee found
that the record did not support placing much weight on those
factors as mitigating the misconduct. In the referee's opinion,
Attorney Meisel did not provide clear, satisfactory, and
convincing evidence of the nexus between his medical condition
and the repeated proactive misconduct of converting client funds
that occurred over the course of several years.
¶24 The referee went on to say that although the record
supported the finding that Attorney Meisel had and has mental
health conditions, the record did not establish that those
conditions were mental disabilities. The referee noted that Dr.
Malkin ultimately testified that Attorney Meisel's health
condition may have predisposed him to less acute judgment and
executive function, but Dr. Malkin acknowledged that
predisposition is not the same as causation. Accordingly, the
referee concluded that Dr. Malkin did not satisfactorily draw
the required causal connection between Attorney Meisel's health
issues and his misconduct. The referee noted that in In re
Disciplinary Proceedings Against Sosnay, 209 Wis. 2d 241, 243,
562 N.W.2d 137 (1997), this court said that absent a causal
connection between an attorney's medical condition and the
attorney's professional misconduct, the medical condition may
16
No. 2015AP463-D
not be considered a factor mitigating either the seriousness of
the misconduct or the severity of the discipline to be imposed
for it.
¶25 The referee also noted that even when an attorney has
been able to establish a direct causal connection between a
medical condition and professional misconduct, the fact that the
attorney was apparently able to serve other clients free of
misconduct, as the record shows Attorney Meisel was able to do,
was significant in determining the sanction and the mitigating
effects of medical conditions. See In re Disciplinary
Proceedings Against Jacobson, 2004 WI 152, ¶79, 277 Wis. 2d 120,
690 N.W.2d 264; In re Disciplinary Proceedings Against Karlsson,
2001 WI 126, ¶48, 248 Wis. 2d 681, 635 N.W.2d 771.
¶26 Due to the lack of a causal connection between the
medical condition and the misconduct, the referee found that
Attorney Meisel failed to present persuasive arguments that
would support a five-month suspension. The referee concluded
that a two-year suspension of Attorney Meisel's license to
practice law was an appropriate sanction. In support of this
recommendation, the referee cited In re Disciplinary Proceedings
Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999); In re
Disciplinary Proceedings Against Edgar (Edgar II), 2003 WI 49,
261 Wis. 2d 413, 661 N.W.2d 817; In re Disciplinary Proceedings
Against Brown, 2012 WI 51, 340 Wis. 2d 527, 814 N.W.2d 172; and
In re Disciplinary Proceedings Against Carter, 2014 WI 126, 359
Wis. 2d 70, 856 N.W.2d 595.
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No. 2015AP463-D
¶27 The referee noted that the law licenses of Brown and
Edgar were suspended for two years, and Carter's license was
suspended for three years. All three cases involved conversion
of funds and comingling of trust and personal funds to pay
personal expenses. The amounts of the conversions in those
cases were significantly less than at issue here, with the Edgar
case involving about $11,000, Brown $13,000, and Carter $75,000.
The referee noted that as in Carter, Attorney Meisel entered
into a stipulation to resolve the matter. She also noted that
Attorney Meisel has made restitution and returned the converted
funds.
¶28 In addition to concluding that a two-year suspension,
was appropriate, the referee also recommended the imposition of
the following conditions upon Attorney Meisel:
(1) demonstration that he has his medical conditions
and stress and any other emotional or psychological
problems under control, by his submission of
documentation of fitness pursuant to a medical
examination by a health provider approved by the OLR,
at his own expense;
(2) that he remain in treatment as recommended by his
treating physician and obtain evaluations and neuro-
oncologist monitoring pursuant to the written medical
report included in the record as Exhibit 117 and via
trial testimony, and that his medical treatment be
monitored by the OLR via submission of quarterly
reports for a period of two years following his
reinstatement;
(3) that his practice of law be monitored by an
attorney approved by OLR for a period of two years
following reinstatement, unless he is either employed
by a law firm, corporate office or practicing with
another attorney aware of his disciplinary and medical
history;
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No. 2015AP463-D
(4) that he obtain six Continuing Legal Education
credits in trust account and/or law office management,
and six Continuing Legal Education credits in business
and professional conflict of interest, to be approved
by OLR and monitored by OLR for compliance.
¶29 Attorney Meisel's appeal raises three issues:
1. Did Attorney Meisel present clear, convincing, and
satisfactory evidence of a causal connection between
Attorney Meisel’s medical condition and his
misconduct?
2. Did the aggravating factors of Attorney Meisel’s
conduct weigh more heavily than the mitigating
factors?
3. Is a two-year suspension disproportionate for the
alleged offenses?
¶30 Attorney Meisel argues that his testimony at the
evidentiary hearing, combined with the testimony of Dr. Malkin,
presented clear, convincing and satisfactory evidence that
Attorney Meisel's medical condition caused him to engage in the
misconduct. He argues that the referee erroneously found
otherwise.
¶31 Attorney Meisel further argues that the referee's
finding that the aggravating factors in this case weigh more
heavily than the mitigating factors is not supported either by
the record or by applicable case law. He asserts there is
simply no evidence to support any contention that his actions
were made with a selfish motive. He asserts that the mitigating
factors in this case far outweigh any aggravating factors and he
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No. 2015AP463-D
says the contrary conclusion of the referee is based on mere
speculation.
¶32 Attorney Meisel also argues that the referee's
recommendation of a two-year suspension is disproportionate to
the allegations of misconduct. Attorney Meisel acknowledges
that what he did was wrong, but he notes that the actions were
taken during a very bad time in his life when he was undergoing
very stressful situations involving his health and his family.
He says his contrition, his appreciation of the error of his
ways, and his understanding of what he needs to do to return to
being a productive member of the bar were evident in his
testimony at the evidentiary hearing.
¶33 Attorney Meisel acknowledges that one factor the court
considers when assessing the appropriate level of discipline to
impose is the need to deter other attorneys from engaging in
similar misconduct. He says not only are the unique medical,
personal, emotional, and financial circumstances that led to the
series of terrible, stupid mistakes he made extremely unlikely
to ever be repeated by any other attorney, the experience which
he has already gone through will strongly motivate him to avoid
any such conduct in the future. He asserts that no other
attorney is ever going to be placed in the same situation he was
and in the extremely unlikely event someone was placed in a
similar situation, that attorney's impaired judgment
capabilities would not make it possible to fully take into
account the circumstances and discipline imposed in this case.
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No. 2015AP463-D
¶34 Attorney Meisel argues that when viewed in its
entirety, the appropriate sanction for his misconduct would be a
suspension of no more than five months. Attorney Meisel notes
that the difference between a five-month suspension and a six-
month suspension is significant since, pursuant to SCR 22.28,
suspensions of less then six months permit reinstatement upon
application and execution of documents indicating compliance
with the requirements of the suspension. By contrast,
suspensions of six months or more require the attorney to file a
petition for reinstatement and go through a full reinstatement
proceeding, which can add as much as one to two years on to the
suspension.
¶35 Attorney Meisel argues that the decision in Jacobson
should guide this court in its analysis of the case. Attorney
Jacobson received a five-month suspension for multiple counts of
misconduct, which included failure to communicate with clients
and keep them informed; trust account discrepancies; misuse of
client funds; and misrepresentation to and failure to cooperate
with the OLR. The referee in that case found that Attorney
Jacobson's ongoing depression was the cause of the misconduct
that led to the disciplinary proceedings. A psychiatrist
testified at Attorney Jacobson's evidentiary hearing that, to a
reasonable degree of medical probability, there was a direct
relationship between Attorney Jacobson's depression and his
misconduct.
¶36 The OLR argues that Attorney Meisel's egregious
misconduct involving conversions in excess of $175,000 over a
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No. 2015AP463-D
three-year period warrants a two-year suspension of his license
to practice law. According to the OLR, Attorney Meisel's
misconduct more closely approaches the standards for revocation,
and it says the minimally appropriate discipline in this case
should be a very lengthy suspension.
¶37 As to Attorney Meisel's claim that Dr. Malkin
established a causal connection between Attorney Meisel's health
issues and his misconduct, the OLR says that Dr. Malkin wrote in
his expert report and said in testimony at the evidentiary
hearing initially consistent with the report, that Attorney
Meisel's health condition may have predisposed Attorney Meisel
to less acute judgment and executive function. The OLR says
Dr. Malkin then dramatically detoured from his report in his
hearing testimony and opined that the medical issues actually
caused Attorney Meisel's three year pattern of misconduct. The
OLR says in attempting to justify that opinion on cross-
examination, Dr. Malkin apparently recognized the dearth of any
medical basis to support it and promptly retreated to his theory
of predisposition, not causation.
¶38 The OLR notes that in her findings of fact, the
referee found that Dr. Malkin clarified on cross-examination
that his ultimate opinion was that Attorney Meisel was merely
predisposed to bad decision making and the doctor did not
provide testimony of a causal relationship between the medical
condition and the conversions. The OLR asserts the referee's
findings of fact are supported by Dr. Malkin's own testimony and
should be upheld by this court.
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No. 2015AP463-D
¶39 The OLR argues that Attorney Meisel's proposed
discipline of a suspension of less than six months would
undermine multiple goals of attorney discipline, particularly
recognition of the seriousness of the misconduct and the need to
deter other attorneys from engaging in similar misconduct. The
OLR says the referee appropriately cited the Edgar, Brown, and
Carter cases as support for the imposition of a two-year
suspension of Attorney Meisel's law license. As to the
conditions recommended by the referee, the OLR says they all
relate to appropriate reinstatement concerns and the OLR
suggests that this court refrain from ordering the conditions as
part of the disciplinary case and rather allow the particulars
of appropriate treatment and monitoring to be addressed in the
context of a future formal reinstatement proceeding.
¶40 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings Against Eisenberg, 2004 WI
14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose
whatever sanction it sees fit, regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶41 After careful review of the matter, we conclude there
has been no showing that any of the referee's findings of fact,
including her finding that Dr. Malkin did not provide testimony
showing a causal relationship between Attorney Meisel's medical
condition and the conversions, are clearly erroneous and,
accordingly, we adopt them. We further agree with the referee's
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No. 2015AP463-D
conclusions of law that Attorney Meisel violated all of the
supreme court rules set forth above.
¶42 Turning to the question of the appropriate sanction,
the four primary goals of attorney discipline are to address the
seriousness of the misconduct; to protect the public, courts,
and the legal system from repetition of misconduct; to impress
upon the attorney the seriousness of the misconduct; and to
deter other attorneys from engaging in similar misconduct. See
In re Disciplinary Proceedings Against Arthur, 2005 WI 40, ¶78,
279 Wis. 2d 583, 694 N.W.2d 910. Both aggravating and
mitigating factors may be taken into consideration in
determining the appropriate sanction for attorney misconduct.
¶43 We disagree with Attorney Meisel's claim that there is
no evidence in the record to support a finding that his actions
were made with a selfish motive or to gain advantage. In the
referee's words:
Attorney Meisel used converted client funds for his
own personal benefit, including but not limited to
sustaining King Park, even though his business partner
was not pressuring him to maintain payments. Further,
Attorney Meisel camouflaged his conversions replacing
converted funds with those converted from other client
funds and by mingling personal funds and law firm
funds. The timing of the conversions was deliberate
and, with respect to the guardianships, often very
close to accounting time frames. The actual
conversions further demonstrated dishonesty when
Attorney Meisel further concealed his misconduct by
filing falsified annual accountings with the Milwaukee
County Probate Court that intentionally omitted
disclosure of the converted and replenished fund
transactions.
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No. 2015AP463-D
¶44 We find that the record supports the referee's
conclusions. We also agree with the referee that Attorney
Meisel's repeated conversions and unreported replenishments,
which occurred over a three-year period, involved four separate
matters, and totaled more than $175,000, evidenced a pattern of
misconduct. We also share the referee's concern that Attorney
Meisel converted funds from vulnerable victims. All of these
are aggravating factors.
¶45 We agree that this case also presents a number of
mitigating factors. Specifically, we agree with Attorney Meisel
that his medical condition and other personal and financial
issues do constitute mitigating factors. We view Dr. Malkin's
characterization of the multiple stressors facing Attorney
Meisel as being a "perfect storm" as being an apt description of
the situation in which Attorney Meisel found himself.
¶46 Although we agree with the referee that Attorney
Meisel failed to prove that his medical condition caused his
professional misconduct, the referee and the OLR acknowledge
that Dr. Malkin opined that the medical condition may have pre-
disposed Attorney Meisel to less acute judgment.
¶47 We noted in Sosnay that absent a causal connection
between an attorney's psychological condition and professional
misconduct the referee properly declined to consider the
psychological condition in mitigation either of the seriousness
of the misconduct or the severity of the discipline warranted.
In the instant case, however, the OLR concedes that Attorney
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No. 2015AP463-D
Meisel's serious medical condition should be considered a
mitigating factor. In its appellate brief, the OLR said:
Despite the absence of the required causal connection
between Meisel's medical condition and his
misconduct . . . OLR does not contest that Meisel's
health issues contributed to increased stress on his
everyday life.
¶48 In addition, although the referee found the record
did not support placing "much weight" on Attorney Meisel's
medical issues, she did agree that, "[t]he confluence of
personal and medical matters . . . were substantial, life-
changing" and the long term effects of Attorney Meisel's medical
condition were "balanced sympathetically" in his favor.
¶49 We agree with the OLR and the referee that the unique
medical and personal issues facing Attorney Meisel should be
considered mitigating factors. We also agree with the OLR and
the referee that absent those medical and personal issues a very
lengthy suspension, or perhaps even revocation, would be under
consideration. Although no two disciplinary proceedings are
ever identical, this court does, to the extent possible,
endeavor to impose a similar level of discipline in fact
situations that are somewhat analogous. In support of his
argument that a two-year suspension is excessive, Attorney
Meisel notes that in In re Disciplinary Proceedings Against
MacLean, 2016 WI 45, 369 Wis. 2d 59, 879 N.W.2d 767, an attorney
who intentionally misappropriated over $450,000 received a two-
year suspension. Although we find that the clients in this case
were more vulnerable than the client in MacLean, the amount of
26
No. 2015AP463-D
the conversions in this case is less than half of the amount
converted in MacLean. After careful consideration of the
aggravating and mitigating factors present in this case, we deem
it appropriate to impose a lesser suspension in this case than
was imposed in MacLean and find it appropriate to impose an 18-
month suspension of Attorney Meisel's license to practice law in
Wisconsin.
¶50 We agree with the OLR that it would be premature to
develop conditions for Attorney Meisel's reinstatement at this
juncture. We find that the issue of conditions would be best
addressed in the context of a future reinstatement proceeding.
Since Attorney Meisel has already made full restitution of all
converted funds, no restitution award is sought. As is our
general practice, we agree that Attorney Meisel should be
required to pay the full costs of this disciplinary proceeding.
¶51 IT IS ORDERED that the license of Christopher E.
Meisel to practice law in Wisconsin is suspended for a period of
18 months, effective June 7, 2017.
¶52 IT IS FURTHER ORDERED that Christopher E. Meisel shall
comply with the provisions of SCR 22.26 concerning the duties of
a person whose license to practice law in Wisconsin has been
suspended.
¶53 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Christopher E. Meisel pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $10,831.67.
If the costs are not paid within the time specified, and absent
a showing to this court of his inability to pay the costs within
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No. 2015AP463-D
that time, the license of Christopher E. Meisel to practice law
in Wisconsin, shall remain suspended until further order of the
court.
¶54 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.29(4)(c).
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No. 2015AP463-D.ssa
¶55 SHIRLEY S. ABRAHAMSON, J. (dissenting). Attorney
Meisel has had more than his share of medical problems and has
obviously suffered immensely. I could go along with the
referee's recommendation of a two-year suspension. The referee
already considered mitigating factors. In In re Disciplinary
Proceedings Against Sosnay, 209 Wis. 2d 241, 562 N.W.2d 137(1997), this court said that absent a causal connection between
an attorney's medical condition and the attorney's professional
misconduct, the medical condition may not be considered a factor
mitigating either the seriousness of the misconduct or the
severity of the discipline to be imposed for it. The per curiam
opinion undermines Sosnay. I am unwilling to do that. What is
left of Sosnay? Lawyers, the OLR, and referees ought to know
what factors are mitigating factors.
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No. 2015AP463-D.ssa
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