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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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Nos.
89-0170-D and 93-1839-D
STATE OF WISCONSIN : IN SUPREME COURT
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In the Matter of the Reinstatement of the License of MICHAEL
D. MANDELMAN to Practice Law in Wisconsin. |
FILED DEC
21, 1995 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
ATTORNEY license reinstatement
proceeding. Attorney's license
reinstated with condition.
PER
CURIAM. On September 28, 1995, the Board of Attorneys
Professional Responsibility (Board) filed its report recommending that the
petition of Michael D. Mandelman for the reinstatement of his license to
practice law be granted. Based on the
report of the district professional responsibility committee, to which the
reinstatement petition was referred for investigation and a public hearing, and
on that committee's unanimous favorable recommendation, the Board determined
that Mr. Mandelman satisfied the requirements for license reinstatement set
forth in SCR 22.28(4).[1]
We
determine that Mr. Mandelman has established entitlement to reinstatement of
his license to practice law in Wisconsin.
Nonetheless, we express concern with the record's disclosure of Mr.
Mandelman's substantial debts and his actions in respect to them. Moreover, as a portion of the professional
misconduct for which his license to practice law was suspended involved the
handling of his client trust account, we impose as a condition of his continued
practice periodic reporting to the Board of his dealings with client funds and
with his trust account.
Mr.
Mandelman was licensed to practice law in Wisconsin in 1980 and practiced in
Milwaukee. The court suspended his
license for one year as discipline for numerous acts of professional misconduct
in 1990. Disciplinary Proceedings
Against Mandelman, 158 Wis. 2d 1, 460 N.W.2d 749. When the suspension period ended, Mr. Mandelman petitioned for
reinstatement of his license. The court
denied that petition on two grounds:
while that suspension was pending, additional professional misconduct
was discovered, including his post-suspension violation of the rules governing
the handling of his client trust account; during the reinstatement proceeding
itself, he gave incomplete and evasive responses to the district committee and
to the Board. In response to that
additional professional misconduct, the court suspended Mr. Mandelman's license
for an additional 18 months, consecutive to the termination of the earlier
suspension. Disciplinary Proceedings
Against Mandelman, 182 Wis. 2d 583, 514 N.W.2d 11 (1994).
In
the instant proceeding, the district professional responsibility committee
thoroughly reviewed Mr. Mandelman's reinstatement petition and held a public
hearing on it. The committee filed a
lengthy report with the Board in which it expressed significant concern with
the fact that Mr. Mandelman has incurred substantial personal debt and state
and federal income tax liability, the latter exceeding $1,000,000, but elected
to use approximately $750,000 of his own funds to pursue business ventures
rather than apply it to his debts.
Those business ventures were unsuccessful, causing Mr. Mandelman not
only to lose his investment but to incur additional debt.
The
committee noted that Mr. Mandelman was negotiating with the state and federal
tax authorities to establish payment plans to reduce the resulting tax liens
and that the proceeds of the sale of an investment property are to be applied
to the federal tax lien. Also, Mr.
Mandelman paid some $350,000 toward his personal debts, but less than 10
percent of that amount went to his trade creditors; almost one-third was paid
for his office lease and approximately $200,000 went to law firms for fees
incurred as a result of his various legal problems.
Notwithstanding
its concerns, the committee unanimously concluded that Mr. Mandelman satisfied
the requirements for license reinstatement.
That conclusion was based in part on the committee's acknowledgement of
Mr. Mandelman's "thoroughness and timeliness in responding to
documentation requests," in contrast to his responses during the earlier
reinstatement proceeding, and its assessment of the "completeness and
candor of his testimony and in his overall demeanor as a witness." Following review of the committee's report,
the Board agreed with the committee's recommendation that Mr. Mandelman's
petition for license reinstatement be granted.
Our
review of the record developed by the district committee leads us to share its
concern about Mr. Mandelman's judgment in choosing to invest substantial funds
in business ventures rather than to begin paying his lawful obligations. While we are concerned with Mr. Mandelman's
choice not to commit substantial funds to reduce his debts other than those for
legal fees, in particular those owing to the state and federal taxing
authorities, we accept the recommendation of the Board that his petition for
license reinstatement be granted.
We
also accept the Board's recommendation concerning the disposition of funds
currently retained in Mr. Mandelman's client trust account. Because of his numerous trust account
violations, that account has a balance of approximately $7400. Due to his failure to keep adequate records,
the ownership of those funds cannot be determined. The Board recommended that those funds be turned over to the
Wisconsin Trust Account Foundation for its use and for payment of any provable
claims against those funds that may arise.
Thus,
the Board noted, those funds will be available to pay the monetary claim
against Attorney Mandelman of a former client on whose behalf he failed to pay
various medical expenses in a personal injury action and a fine in a traffic
matter, even though he had funds to do so.
Upon submission of adequate documentation to support that claim,
reimbursement to the former client shall be made either by Mr. Mandelman or, if
the claim is established following transfer of the funds, by the
Foundation.
Finally,
because Mr. Mandelman's professional misconduct concerned, in part, his failure
to comply with the court's rules governing attorney trust accounts, we
determine it appropriate to impose on his resumption of the practice of law a
condition to ensure his compliance with those rules. Accordingly, we require that quarterly for the two years
following reinstatement of his license to practice law Mr. Mandelman submit to
the Board records of his trust account as the Board may specify.
IT
IS ORDERED that the petition for reinstatement of the license of Michael D.
Mandelman to practice law in Wisconsin is granted and his license to practice
law is reinstated, effective the date of this order.
IT
IS FURTHER ORDERED that within seven days of the date of this order, Michael D.
Mandelman shall pay to the Wisconsin Trust Account Foundation the funds in his
client trust account and that reimbursement from those funds be made as
specified in this order. IT IS FURTHER ORDERED that Michael D.
Mandelman shall furnish trust account records to the Board as specified
herein.
DONALD
W. STEINMETZ and JON P. WILCOX, JJ., dissent.
JANINE
P. GESKE, J., did not participate.
SUPREME COURT OF WISCONSIN
Case No.: 89-0170-D and 93-1839-D
Complete Title
of Case: In the Matter of the Reinstatement
of the License of Michael D. Mandelman
to Practice Law in Wisconsin.
_____________________________________
REINSTATEMENT OF MANDELMAN
Opinion Filed: December 21, 1995
Submitted on Briefs:
Oral Argument:
Source of APPEAL
COURT:
COUNTY:
JUDGE:
JUSTICES:
Concurred:
Dissented: STEINMETZ, J. and WILCOX, J., dissent
Not Participating: GESKE, J., did not participate
ATTORNEYS:
[1] SCR 22.28 provides, in pertinent part: Reinstatement.
. . .
(4) The petition for reinstatement shall show
that:
(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 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, including a list of specific activities pursued.
(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.
(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 of SCR 22.26.
(i) The petitioner indicates the proposed use of
the license if reinstated.
(j) The petitioner has fully described all
business activities during the period of suspension or revocation.
(k) The petitioner has made restitution or
settled all claims from persons injured or harmed by petitioner's misconduct
or, if the restitution is not complete, petitioner's explanation of the failure
or inability to do so.