Office of Lawyer Regulation v. Thomas O. Mulligan
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2009 WI 12 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2008AP971-D In the Matter of Disciplinary Proceedings Against Thomas O. Mulligan, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Thomas O. Mulligan, Respondent. DISCIPILINARY PROCEEDINGS AGAINST MULLIGAN OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 29, 2009 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: GABLEMAN, J., did not participate. 2009 WI 12 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2008AP971-D STATE OF WISCONSIN : IN SUPREME COURT In the Matter of Disciplinary Proceedings Against Thomas O. Mulligan, Attorney at Law: FILED Office of Lawyer Regulation, Complainant, JAN 29, 2009 v. David R. Schanker Clerk of Supreme Court Thomas O. Mulligan, Respondent. ATTORNEY disciplinary proceeding. Attorney publicly reprimanded. ¶1 filed PER by the recommending Office of Mulligan. referee CURIAM. We referee, this Lawyer court review Reserve accept Regulation a report Judge the (OLR) James stipulation and recommendation R. Erickson, filed Attorney by Thomas the O. Consistent with the terms of that stipulation, the recommends this court publicly Mulligan for his professional misconduct. filed. and reprimand Attorney No appeal has been No. ¶2 2008AP971-D Attorney Mulligan has been licensed to practice law in Wisconsin since 1985. consensual private In 1997 Attorney reprimand for Mulligan received professional a misconduct consisting of failing to properly communicate with his client, failing to return a client's file, failing to refund unearned fees upon termination of representation, and failing to communicate the basis or rate of his fee within a reasonable time after commencing the representation. of Thomas O. Mulligan, 1997-25. received a consensual See Private Reprimand In 2005 Attorney Mulligan again private reprimand for professional misconduct including failing to timely refund an advance payment See Private Reprimand of of fee that had not been earned. Thomas O. Mulligan, 2005-10. ¶3 that The present disciplinary matter involves allegations Attorney Mulligan committed professional misconduct in connection with his handling of an appeal from an unfavorable judgment in a property dispute. ¶4 Attorney Mulligan was retained to represent D.C. in connection Agency with a Agreement dispute about between the D.C. and terms of G.P. a and Timber Sale J.P. More specifically, the parties disputed the amount of revenue that G.P. and J.P. should receive property by TnT Logging, Inc. from timber harvested on their On September 30, 2002, G.P. and J.P. filed suit in Burnett County against D.C. individually and against the company. They sought compensation for the timber removed from their property pursuant to the contract, incidental 2 No. 2008AP971-D damages to a vehicle and a roadway, along with attorney fees and costs. ¶5 D.C. retained Attorney Mulligan to represent both him and the logging company in the lawsuit. The matter was tried to a jury in August of 2003, and the jury returned a verdict in favor of the company. plaintiffs and against D.C. and the logging In November 2003 the trial court entered judgment in favor of G.P. and J.P. in the total amount of $6,943.50. The trial court declined the plaintiffs' request for attorney fees. ¶6 G.P. and J.P. appealed the trial court's decision not to award attorney fees. D.C. retained Attorney Mulligan to represent him and the logging company on appeal. ¶7 On January 2, 2004, Attorney Mulligan filed a cross- appeal seeking reversal of the jury's finding that a breach of contract had occurred. He argued that the evidence at trial was not sufficient to support the jury's verdict. However, Attorney Mulligan never obtained the transcripts from the trial and never filed a transcript appeals. from the jury trial with the court of Attorney Mulligan never consulted with or advised D.C. that he was proceeding with the appeal without having obtained the trial transcripts. Indeed, Attorney Mulligan did not communicate with his client after January 17, 2004 the date Attorney Mulligan received advance fees to pursue the appeal until June 3, 2005 the date he notified D.C. of the court of appeals' adverse decision. 3 No. ¶8 2008AP971-D In its decision, the court of appeals observed: On cross-appeal, [D.C] challenges the sufficiency of the evidence to support the jury's verdict. His argument, however, is wholly undeveloped and unsupported by any reference to the record or trial testimony. See Wis. Stat. (Rule) 809.19(1)(e) (200304). Because [D.C] proffers no argument susceptible to meaningful appellate review, we affirm the judgment against him. Emphasis added. ¶9 two On April 18, 2008, the OLR filed a complaint alleging counts of professional misconduct Mulligan's handling of the appeal. related to Attorney Subsequently, the OLR moved to dismiss the first count of the complaint and modified the second count to allege that Attorney Mulligan violated former SCRs 20:1.2(a)1 and 20:1.4(b)2 by failing to consult with D.C. 1 Effective July 1, 2007, substantial changes were made to the Wisconsin Supreme Court Rules of Professional Conduct for Attorneys, SCR Chapter 20. See S. Ct. Order 04-07, 2007 WI 4, 293 Wis. 2d xv, 726 N.W.2d Ct.R-45 (eff. July 1, 2007); and S. Ct. Order 06-04, 2007 WI 48, 297 Wis. 2d xv, 730 N.W.2d Ct.R.-29 (eff. July 1, 2007). Because the conduct underlying this case arose prior to July 1, 2007, unless otherwise indicated, all references to the Wisconsin Supreme Court Rules will be to those in effect prior to July 1, 2007. Former SCR 20:1.2(a) provided: A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall inform a client of all offers of settlement and abide by a client s decision whether to accept an offer of settlement of a matter. In a criminal case or any proceeding that could result in deprivation of liberty, the lawyer shall abide by the 4 No. regarding his intent to proceed with the 2008AP971-D appeal without obtaining the trial transcripts and regarding his decision to seek only de novo review of the Timber Sale Contract.3 ¶10 On October 24, 2008, the parties executed a written stipulation in which they stipulated to the facts set forth therein, stated their agreement as to appropriate sanctions, and jointly requested Referee Erickson file a report making findings, conclusions, and a recommendation for discipline. ¶11 On October 24, 2008, Referee Erickson filed a report approving the stipulation and, consistent with the terms of the stipulation, recommending a public reprimand. He also accepted the parties' agreement that Attorney Mulligan should complete six hours of continuing legal education (CLE) on legal research/writing and six hours of CLE on appellate practice by December 31, 2009. In accepting the stipulation and agreeing with the recommended discipline, the referee noted that he was "satisfied counsel that is the fair circumstances . . . ." discipline and He proposed reasonable explicitly by the under noted that parties and all the no harsher client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. 2 Former SCR 20:1.4(b) provided that, "a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." 3 Referee Erickson granted the motion to dismiss count one of the complaint and issued an order modifying count two of the complaint on October 8, 2008. 5 No. sanction seemed warranted. 2008AP971-D Finally, he recommended this court impose the costs of the proceeding on Attorney Mulligan. Those costs total $6,114.71 as of November 13, 2008. ¶12 that We adopt the referee's findings of fact and conclusion Attorney Mulligan violated former SCRs 20:1.2(a) and 20:1.4(b) by failing to consult with D.C. regarding his intent to proceed with the appeal transcripts and regarding review the Timber of without his obtaining decision Sale to Contract. seek the de novo determining In only trial the appropriate discipline for professional misconduct, we consider the seriousness of the misconduct, public, the courts, and the misconduct, the seriousness attorneys of from Disciplinary need the to protect the legal system from repetition of upon the attorney misconduct, Proceedings need impress to engaging the in and the similar Against Wis. 2d 583, 694 N.W.2d 910. need deter misconduct. Arthur, Here, to we 2005 are See WI the other In 40, satisfied re 279 that a public reprimand, together with requiring Attorney Mulligan to complete hours six hours of CLE of CLE discipline on on appellate objectives. We legal research/writing practice also will impose the and achieve costs six lawyer of this proceeding. ¶13 IT IS ORDERED that Thomas O. Mulligan is publicly reprimanded for professional misconduct. ¶14 Thomas O. IT IS FURTHER Mulligan shall ORDERED that complete 6 six by December hours of 31, 2009, CLE-approved No. coursework on legal research/writing and six hours 2008AP971-D of CLE- approved coursework on appellate practice. ¶15 IT IS FURTHER ORDERED that within 60 days of the date of this order Thomas O. Mulligan pay to the Office of Lawyer Regulation the costs of this proceeding, provided that if the costs are not paid within the time specified and absent a showing to this court of his inability to pay those costs within that time, the license of Thomas O. Mulligan to practice law in Wisconsin shall be suspended until further order of the court. ¶16 MICHAEL J. GABLEMAN, J., did not participate. 7 No. 1 2008AP971-D
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