Office of Lawyer Regulation v. Christopher A. Mutschler
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2011 WI 74 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP1939-D In the Matter of Disciplinary Proceedings Against Christopher A. Mutschler, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Christopher A. Mutschler, Respondent. REVIEW OF PETITION FOR CONSENSUAL LICENSE REVOCATION OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: July 14, 2011 2011 WI 74 NOTICE 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: FILED Office of Lawyer Regulation, JUL 14, 2011 Complainant, A. John Voelker Acting Clerk of Supreme Court v. Christopher A. Mutschler, Respondent. ATTORNEY disciplinary proceeding. Attorney's license revoked. ¶1 PER CURIAM. We review the petition of Attorney Christopher A. Mutschler for the consensual revocation of his license to practice law in Wisconsin. ¶2 See SCR 22.19. Attorney Mutschler was admitted to the practice of law in Wisconsin in 1991. He most recently practiced law in Fond du Lac. ¶3 Attorney Mutschler has not previously been the subject of professional discipline. His license to practice law in No. 2010AP1939-D Wisconsin, however, has been temporarily suspended since March 2010 due to his willful failure to cooperate with the Office of Lawyer Regulation's his conduct. (OLR) grievance See SCR 22.03(4). investigations concerning His license remains suspended as of the date of this opinion. ¶4 The petition for consensual revocation and the OLR's summary of the misconduct allegations against Attorney Mutschler state that there are 59 separate investigations pending against him. The OLR's summary indicates that for each investigation there appear to be violations of multiple rules. Thus, if a formal complaint were to be filed against Attorney Mutschler, there could apparently be scores or even hundreds of counts of professional misconduct. In addition to the underlying misconduct at issue in these grievance investigations, Attorney Mutschler would also be subject to multiple additional counts related to his failure to cooperate with the OLR's separate grievance investigations. ¶5 Mutschler Nearly appear all to of the follow a grievances similar against pattern. In Attorney general, Attorney Mutschler would obtain payment of an advance fee, which was often a flat fee, to represent a client in a traffic, OWI, or criminal case. In OWI and traffic cases, Attorney Mutschler would then often advise the client to enter a no contest plea and promise that he would win the case on appeal. In some cases, Attorney Mutschler would never notify the client of the scheduled hearing on the pending charge or citation, leading to the client failing to appear. In some cases, Attorney Mutschler 2 No. 2010AP1939-D himself would fail to appear at the scheduled hearing. failure to appear by the client or Attorney The Mutschler would often lead the judge presiding over the citation or charge to enter a default judgment against the client. In other cases, the client would, in fact, enter a guilty or no contest plea, but Attorney Mutschler would then either fail to file an appeal or would fail to prosecute the appeal properly, which would lead to the dismissal of the appeal. ¶6 In a large majority of the cases, the grievance alleges that Attorney Mutschler failed to communicate adequately with his client. telephone calls In some cases, the clients made dozens of (up to 100 calls in Attorney Mutschler never returned them. some instances), but In many cases, Attorney Mutschler simply stopped communicating at all with the clients, requiring them either to hire new counsel or to proceed on their own without counsel. ¶7 Some examples of the numbers of possible violations may provide some context for the scope of Attorney Mutschler's professional misconduct. In 57 of the 59 investigations, the OLR alleges a possible violation of SCR 20:1.3,1 which requires a lawyer to act with reasonable diligence and promptness. of the investigations, there are possible In 53 failures to communicate properly with clients, in violation of SCR 20:1.4.2 1 SCR 20:1.3 states "[a] lawyer shall act with reasonable diligence and promptness in representing a client." 2 SCR 20:1.4 provides as follows: (a) A lawyer shall: 3 No. 2010AP1939-D In 54 of the grievance investigations, there is an allegation that Attorney Mutschler failed to hold unearned fees and advance payments received from clients violation of SCR 20:1.15(b)(4).3 in trust until earned, in In 52 of the investigations, (1) Promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in SCR 20:1.0(f), is required by these rules; (2) reasonably consult with the client about the means by which the client's objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter; (4) promptly comply with reasonable requests by the client for information; and (5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. The OLR's misconduct summary indicates that in some instances Attorney Mutschler's misconduct may have been covered by the prior version of this rule, which was in effect prior to July 1, 2007, and provided as follows: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. 3 SCR 20:1.15(b)(4) states: 4 No. 2010AP1939-D there is an allegation that Attorney Mutschler failed to take reasonable steps to protect his clients' interests upon the termination of the representation, including returning unearned advance payments, in violation of SCR 20:1.16(d).4 Finally, the Unearned fees and cost advances. Except as provided in par. (4m), unearned fees and advanced payments of fees shall be held in trust until earned by the lawyer, and withdrawn pursuant to sub. (g). Funds advanced by a client or 3rd party for payment of costs shall be held in trust until the costs are incurred. The OLR's misconduct summary indicates that in some instances Attorney Mutschler's misconduct may have been covered by the prior version of this rule, which was in effect prior to July 1, 2007, and provided as follows: Unearned fees and cost advances. Unearned fees and advanced payments of fees shall be held in trust until earned by the lawyer, and withdrawn pursuant to SCR 20:1.15(g). Funds advanced by a client or 3rd party for payment of costs shall be held in trust until the costs are incurred. 4 SCR 20:1.16(d) provides: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. The OLR's misconduct summary indicates that in some instances Attorney Mutschler's misconduct may have been covered by the prior version of this rule, which was in effect prior to July 1, 2007, and provided as follows: Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable 5 No. 2010AP1939-D OLR indicates that in 26 of the investigations there may be a possible violation of SCR 20:8.4(c),5 which prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. ¶8 In addition to misconduct related to representations of clients, the OLR's summary of misconduct also indicates that Attorney Mutschler engaged in criminal conduct. In 2008, pursuant to a plea agreement, Attorney Mutschler pled no contest to a charge of uttering a forgery, a felony, and to a charge of possession of an illegally obtained prescription medication, a misdemeanor. The forgery count prosecution agreement and was prosecutor's motion. According was subject later to the to a dismissed OLR's deferred on summary the of misconduct, these charges stemmed from Attorney Mutschler being caught in the act of forging prescription forms and using such forms to obtain pain medication on March 26, 2007. The police later discovered that Attorney Mutschler had also successfully used a forged prescription form to obtain pain medication on March 5, 2007. to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law. 5 SCR 20:8.4(c) states it is professional misconduct for a lawyer to " engage in conduct involving dishonesty, fraud, deceit or misrepresentation; . . . ." 6 No. ¶9 Attorney revocation himself Mutschler's acknowledges against the that petition he cannot professional Attorney misconduct defend allegations In addition, in the the petition is being done freely, voluntarily, and knowingly. He that he has avows consensual of acknowledges Mutschler for successfully described in the OLR's misconduct summary. petition 2010AP1939-D the that right to his filing contest the charges against him and the right to retain counsel to advise and assist him in these matters, and states that he is giving up these rights. Attorney Mutschler further acknowledges that if the court grants his petition and revokes his license, he will be subject to the provisions of SCRs 22.26-22.33. ¶10 We must also address connection with Attorney In the petition the Mutschler's Attorney issue of restitution petition for states that Mutschler in revocation. he cannot successfully defend against the restitution orders sought by the OLR. The OLR's misconduct summary included a statement for each investigation as to whether restitution was sought. Those restitution statements were summarized in a chart attached to the OLR's recommendation revocation by consent. in support of the petition for The restitution chart showed that the OLR requested restitution awards in 45 of the 59 investigations it was conducting. Thus, Attorney Mutschler's statement in his petition that indicates he did not and does not contest restitution award to some person or entity in those matters. a In a number of cases, however, there remained some uncertainty over to whom a restitution award was owed because there was still a 7 No. 2010AP1939-D claim for reimbursement pending before the Wisconsin Lawyers' Fund for Client Protection (the Fund). Thus, it was not clear whether the restitution award should be granted in favor of the client or the Fund. of those claims, restitution submitted to The Fund has subsequently decided a number clarifying be paid updated by updated proper Attorney restitution decisions made by the Fund. those the recipient of any The OLR has based on the Mutschler. recommendations Attorney Mutschler has not disputed restitution recommendations, and we award restitution accordingly. ¶11 In one matter, client G.V. and his mother T.S. asked this court to award restitution to them in the amount of the $13,500 that they had paid to Attorney Mutschler, although the OLR had not requested a restitution award in their matter. They asserted that they had demonstrated to the OLR that Attorney Mutschler had violations. engaged in dishonesty and other ethical This court ordered the OLR to file a response to their restitution request. ¶12 The restitution OLR's when response (1) the stated rights its of policy the is grievant to or seek the respondent attorney in a collateral proceeding will not likely be prejudiced, (2) the funds to be restored do not constitute incidental or consequential damages, (3) the funds to be restored were in the respondent lawyer's direct control, and (4) the amount of any restitution ascertained. 8 award can be reasonably No. ¶13 G.V. 2010AP1939-D The OLR explained that it did not seek restitution for and T.S. substantial because amount of Attorney work in Mutschler that had matter. performed Pursuant to a a representation agreement, G.V. and T.S. paid Attorney Mutschler a $13,500 flat fee to represent G.V. in a criminal proceeding at the trial level. Attorney Mutschler performed a substantial amount of work in moving the circuit court to allow G.V. to withdraw his guilty plea, although the motion was unsuccessful. Moreover, although the agreement obligated Attorney Mutschler to perform services only in the trial court, he also agreed to handle G.V.'s appeal at no additional charge. Further, Attorney Mutschler did file a subsequent motion for additional sentence credit, which the circuit court granted, resulting in a benefit to G.V. Thus, unlike many of the matters being investigated, Attorney Mutschler did perform a substantial amount of work on behalf of G.V., which meant that the amount of any restitution award was unclear and could not T.S. and G.V. filed a be easily and reasonably to OLR's ascertained. ¶14 reply along with a number of supporting documents. the response They claimed that Attorney Mutschler had not really done that much work for G.V. and that other members of his firm had made appearances instead of Attorney Mutschler. They asserted, among other things, that Attorney Mutschler failed to respond to their telephone calls and letters, that much of the work done by Attorney Mutschler and his firm was not satisfactory, and that Attorney Mutschler had been dishonest with them. They also disagreed that Attorney 9 No. 2010AP1939-D Mutschler had been responsible for obtaining sentence credit for G.V. They did note that they had filed a claim with the Fund, but their claim materials had been returned with an explanation from a Fund representative that their claim did not meet the Fund's criteria for restitution. ¶15 clear With respect to our disposition of the petition, it is under the facts of this matter that consensual revocation should be granted. the 59 pending investigations show a the petition for The descriptions of disturbing pattern of Attorney Mutschler taking an individual's money and then doing little or no legal work to earn that money. Attorney Mutschler has demonstrated that he does not appreciate the obligations that apply to an individual who has been granted the privilege to practice law in this state. ¶16 With respect to restitution, we impose the restitution requested in the OLR's updated restitution request. The amounts of restitution in the various client matters and the person or entity to whom restitution is owed are set forth in Appendix A to this opinion, based on the OLR's updated restitution request. See SCR 22.29(4m) (a lawyer petitioning for reinstatement must prove that he or she has made restitution to or settled all claims of persons harmed by the lawyer's misconduct, or must explain his/her failure or inability to do so). ¶17 With respect to the restitution request of G.V. and T.S., we conclude that restitution is not appropriate regarding Attorney Mutschler's representation of G.V. Although G.V. and T.S. may object to the quality of the work, it is clear that 10 No. 2010AP1939-D Attorney Mutschler and his firm did perform a substantial amount of work on G.V.'s behalf. fulfilled Attorney Whether that work was appropriate and Mutschler's contractual obligation to G.V. and T.S. would require an extensive evidentiary hearing or trial and extensive fact-finding, which is not consistent with the focus of disciplinary proceedings on whether an attorney violated the rules of professional conduct and should receive some form of discipline. There are other venues for resolving such monetary issues. ¶18 IT IS ORDERED that the petition for consensual license revocation is granted. ¶19 IT Christopher A. IS FURTHER Mutschler ORDERED to practice that law the license of in Wisconsin is revoked, effective as of the date of this order. ¶20 IT IS FURTHER ORDERED that within 180 days of the date of this order Christopher A. Mutschler shall pay restitution in the amounts and to the individuals or entities set forth in Appendix A to this opinion. ¶21 IT IS FURTHER ORDERED that Christopher A. Mutschler shall comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked. 11 No. 2010AP1939-D Appendix A Individual or Entity to Whom Owed Wisconsin Lawyers' Fund for Client Protection (the Fund) (Grievance re: Client Gary W.) Client Patricia C. Client Kurt D. Client Marcie S. Client Shauna S. Client Scott R. The Fund (Grievance re: Client Joshua V.) The Fund (Grievance re: Client Clinton M.) Client Jason J. The Fund (Grievance re: Client Maureen D.) The Fund (Grievance re: Client Joseph L.) Client Jamie H. Client Ricky B. The Fund (Grievance re: Client Steve D.) The Fund (Grievance re: Client Allen B.) Client James R. Client Sherry L. (or to the Fund if claim paid) The Fund (Grievance re: Sheila F.) Client John S. The Fund (Grievance re: Client Severt J.) The Fund (Grievance re: Client Jason V.) The Fund (Grievance re: Client Jennifer L.) Client Matthew K. (or to the Fund if claim paid) Client Dave M. The Fund (Grievance re: Client Vipul K.) The Fund (Grievance re: Client Glen H.) The Fund (Grievance re: Client Tanya W.) The Fund (Grievance re: Client John N.) The Fund (Grievance re: Client Jason H.) The Fund (Grievance re: Client James K.) The Fund (Grievance re: Client Linda D.) The Fund (Grievance re: Client Melodie D.) Client William K. The Fund (Grievance re: Client Scott C.) Client Ruben M. (or to the Fund if claim paid) The Fund (Grievance re: Client Jared C.) Client Tony M. (or to the Fund if claim paid) Client Eugene K. (or to the Fund if claim paid) Client Jason Z. Constance D. (Grievance re: Client Kurt D.)(or to the Fund if claim paid) Client Terri G. The Fund (Grievance re: Client Christopher C.) The Fund (Grievance re: Client Jason B.) The Fund (Grievance re: Client Mark S.) Client Sherill O. TOTAL: 12 Amount $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ 14,000 2,250 4,500 2,500 4,000 5,000 2,500 10,000 4,500 5,000 700 4,500 4,500 4,250 4,500 6,000 8,500 5,500 4,500 4,500 5,000 841 4,500 5,653 14,500 5,440 4,250 7,500 4,500 7,000 4,000 4,439 6,500 5,000 5,000 4,250 6,500 2,000 8,500 15,000 $ 4,650 $ 3,500 $ 4,500 $ 7,000 $ 5,000 $246,723 No. 13 2010AP1939-D No. 1 2010AP1939-D
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