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ATTORNEY disciplinary
proceeding. Attorney's license
suspended.
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¶1 PER CURIAM. We review the
recommendation of the referee, Jonathan V.
Goodman, that Attorney Michael D.
Mandelman's license to practice law in
Wisconsin be suspended for one year. The
Office of Lawyer Regulation (OLR) filed a
disciplinary complaint alleging six counts
of misconduct arising from three separate
matters. The OLR and Attorney Mandelman
stipulated to Attorney Mandelman's no
contest plea to the allegations of the
disciplinary complaint.
¶2 We conclude the seriousness of
Attorney Mandelman's misconduct warrants a
suspension of his license for a period of
one year, commencing the date of this
decision. We also impose full costs of the
disciplinary proceeding and require
restitution as determined in the referee's
report.
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¶3 Attorney Mandelman's disciplinary
history consists of the following:
• A one-year suspension for 27 rules
violations, including neglect of client
matters, failure to return client files
promptly, contacting injured persons,
representing multiple clients with adverse
interests, settling a client's claim without
authorization, misrepresentations to Board
of Attorneys Professional Responsibility
(BAPR), attempting to limit potential
malpractice liability, and trust account
violations. In re Disciplinary
Proceedings
Against Mandelman, 158 Wis. 2d 1, 460
N.W.2d
749 (1990).
• An 18-month suspension, retroactive
to the termination of the earlier
suspension, for violating various ethics
rules. In re Disciplinary Proceedings
Against Mandelman, 182 Wis. 2d 583, 514
N.W.2d 11 (1994). This decision also denied
his petition for reinstatement because while
his suspension was pending, additional
professional misconduct was discovered,
including post-suspension trust account
violations and, during reinstatement
proceedings, he gave incomplete and evasive
information to BAPR.
• Reinstatement of Attorney
Mandelman's license to practice law with the
condition of periodic reporting to the board
of his dealings with client funds and his
trust account. In re Reinstatement of
Mandelman, 197 Wis. 2d 435, 541 N.W.2d 480
(1995).
• A private reprimand for misconduct
consisting of a false statement to a
tribunal, contrary to former SCR 20:3.3(a).
Private Reprimand of Michael Mandelman, 1999
18.
• A nine-month suspension effective
July 1, 2006, for violations of SCR 20:1.5
(c), SCR 20:5.1(c)(2), SCR 20:1.16(a)(3),
former SCR 20:1.15(b), SCR 20:1.8(h), SCR
20:1.3, and SCR 20:8.4(f). In re
Disciplinary Proceedings Against
Mandelman,
2006 WI 45, 290 Wis. 2d 158, 714 N.W.2d
512. Attorney Mandelman's license to
practice law remains under suspension as a
result of the 2006 disciplinary
proceeding.
¶4 In the current proceedings,
consistent with the allegations of the
disciplinary complaint and the parties'
stipulation, the referee found six counts of
misconduct in the following three matters.
I. S.M. CLIENT MATTER (COUNTS 1 THROUGH
3)
¶5 In October 2000 S.M. suffered
injuries in an automobile accident. He
retained Attorney G.C. who reached an
agreement with the adverse driver's
insurance carrier for policy limits of
$25,000. S.M. also sought recovery from his
own underinsurance carrier, Hastings
Mutual. Without notifying Attorney G.C.,
S.M. retained the law firm of Reitz and
Mandelman, LLC. Subsequently, Attorney
Mandelman's partner, Jeffrey Reitz, advised
Attorney G.C. that he had been discharged as
S.M.'s attorney.
¶6 Attorney G.C., however, had already
received the $25,000 settlement check and
had determined the amount of the outstanding
medical bills to be paid from the proceeds.
He offered to disburse the check proceeds
through his trust account. Attorney
Mandelman declined and, instead, reached an
agreement with Attorney G.C. to reduce his
one-fourth contingency fee to $5,000 and
arrange for the insurance company to reissue
the check to the Reitz and Mandelman law
firm trust account.
¶7 In June 2002 the settlement check
was deposited in the Reitz and Mandelman,
LLC, trust account. Proceeds were issued as
follows: $10,000 to S.M., $5,000 along with
$293.56 for costs to Attorney G.C., and
$1,250 to Reitz and Mandelman, LLC. This
distribution left $8,456.44 to cover medical
bills, which were outstanding in the sum of
$8,045.66.
¶8 Attorney Mandelman's office had
performed no work to obtain the insurance
settlement check but nonetheless paid itself
a $1,250 fee, reflecting the difference
between the amount that Attorney G.C. would
have received under his one-fourth
contingency agreement with S.M. and the
$5,000 fee Attorney G.C. agreed to accept.
Attorney Mandelman provided no information
about the disbursements when he sent S.M.
his check.
¶9 In October 2003 Attorney Mandelman
sent a demand letter to Hastings Mutual
seeking $150,000 policy limits. Hastings
Mutual responded with a $14,000 offer.
After more than two years, no progress had
been made toward settlement. Although S.M.
asked Attorney Mandelman to file suit on
several occasions, Attorney Mandelman failed
to do so. In March 2004 Attorney Mandelman
wrote to S.M. indicating that he was working
diligently on the matter.
¶10 After S.M.'s repeated demands,
Attorney Mandelman shipped a box of
documents to S.M. in June 2006, with a cover
letter indicating a $42,000 settlement could
be reached. Attorney Mandelman provided no
information regarding his impending license
suspension and failed to advise that
$8,456.44 of S.M.'s funds remained in
Attorney Mandelman's trust account. S.M.
had previously informed Attorney Mandelman
that S.M. required surgery due to the spinal
injuries suffered in the accident, but he
lacked funds to cover the medical expense.
¶11 In July 2006 S.M. and his wife filed
a grievance with the OLR and a claim with
the Wisconsin Lawyers' Fund for Client
Protection regarding the $25,000 settlement
check for which they had received no
accounting. Eventually, after hiring
another attorney, S.M. received the
$8,456.44 remaining in Attorney Mandelman's
trust account.
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¶12 The referee concluded the S.M.
client matter gave rise to three violations:
• Count one: By collecting the $1,250
fee without performing any work, Attorney
Mandelman violated former SCR 20:1.5(a),
which requires that a lawyer's fee be
reasonable.
• Count two: By failing to give S.M.
a written settlement statement showing the
actual or intended disbursements for the
$25,000 settlement and retaining $8,456.44
for more than four years, Attorney Mandelman
violated former SCR 20:1.15(b) and former
SCR 20:1.15(d), which require prompt
disbursement of client funds and full
accounting upon request; and
• Count three: By failing to discuss
S.M.'s case and by advising that he had been
diligently working on his case when in fact
he had not, Attorney Mandelman violated SCR
20:1.4(b), which requires a lawyer to
explain a matter to the extent reasonably
necessary to permit the client to make
informed decisions.
¶13 The referee also found restitution
of $1,250 was owed to S.M.
II. THE DR. G.D. MATTER (COUNT 4)
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¶14 Dr. G.D. is a chiropractor to whom
Attorney Mandelman referred personal injury
clients for treatment. In 15 client cases,
Attorney Mandelman (or in one case, his law
partner) entered into a doctor's lien in
which the law firm and the client agreed to
pay for Dr. G.D.'s chiropractic services
from the client's settlement proceeds. In
each of the 15 cases, Attorney Mandelman
obtained a settlement on behalf of the
client, but failed to send Dr. G.D. written
notice when the settlement proceeds were
received and deposited in Attorney
Mandelman's firm trust account.
¶15 Three cases are representative. For
example, in one instance involving client
P.D., the firm received a $10,000 settlement
in April 1999. Dr. G.D. was owed
$2,211.72. Only $426.75 was retained in the
firm's trust account, which remained on
deposit for seven years without payment to
Dr. G.D. In another case involving client
A.R., Dr. G.D. was owed $977.40. A $10,000
settlement check was received and, after
payment of Attorney Mandelman's legal fees,
the balance of the proceeds was paid to the
client without satisfying Dr. G.D.'s lien.
¶16 In a third case involving client
B.S., the firm received a $23,000 settlement
check in February 2001. Dr. G.D.'s bill
showed he was owed approximately $3,400 at
that time. Attorney Mandelman's firm,
however, referred to Dr. G.D.'s 1999
statement that had been prepared before the
receipt of several insurance payments. The
1999 statement showed an incorrect $6,616.88
balance due to Dr. G.D. Attorney Mandelman
provided B.S. with an incorrect settlement
statement showing Dr. G.D.'s lien to be
$6,616.88 when in fact it was approximately
$3,400.
¶17 The firm distributed $14,282.12,
leaving $8,717.88 on deposit from the
settlement. The $8,717.88 was retained in
the firm's trust account for approximately
ten months without payment to Dr. G.D. On
December 7, 2001, the firm prepared a $5,600
trust account check made out to Dr. G.D. and
sent it to a collection agency, in
anticipation that the collection agency
would convince the doctor to accept the
check in full payment of his lien. The
check was endorsed and cashed by the
collection agency, but Dr. G.D. denies
receiving the funds. On June 12, 2002, the
firm sent B.S. $3,177.88, reflecting the
balance of his settlement.
¶18 In July 2002 Dr. G.D. sued B.S. in
small claims court and obtained a $3,589.04
default judgment against him. Attorney
Mandelman has admitted that his or his law
firm's settlement with the collection agency
and Dr. G.D. was to B.S.'s financial
detriment in the amount of $2,200 and was
not done by reason of any fault on the part
of B.S. The referee recommended restitution
of $2,200 to B.S.
III. THE D.K. CLIENT MATTER (COUNTS 5 AND
6)
¶19 In the final matter, D.K. suffered
injuries in two separate traffic accidents.
First, as a pedestrian in a crosswalk, D.K.
was hit by a truck and suffered injuries.
Several months later, before her first case
was resolved, D.K. was again injured in a
separate automobile accident. D.K. retained
Attorney Timothy Geary and Attorney
Mandelman, both of whom agreed to serve as
co-counsel on the two cases.
¶20 In April 2005, with respect to the
first accident, a $145,000 settlement check
was sent to Attorney Mandelman's firm. He
did not obtain D.K.'s endorsement and did
not deposit the check into his trust account
until August 1, 2005.
¶21 Although Attorney Mandelman had
agreed to provide updated notices to
Medicare on D.K.'s behalf, he failed to do
so timely. He also failed to pay the
subrogated Medicare lien and the assessed
interest in a timely fashion. D.K. had
requested the return of certain items from
her file and Attorney Mandelman promised to
do so within 24 hours, but he failed to
return them. This misconduct gave rise to
count five, charging a violation of SCR
20:1.3, which requires a lawyer to act with
reasonable diligence and promptness.
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¶22 In addition, Attorney Mandelman
failed to pay D.K. $100 that had been left
in his trust account for more than four
months after he was discharged as her
attorney, and two and one-half months after
his license suspension. This misconduct
gave rise to count six, former SCR 20:1.15(d)
(1), which requires a lawyer to notify a
client promptly when he receives funds in
which a client has an interest and promptly
deliver the funds absent an agreement or
legal requirement to do otherwise.
¶23 Upon the parties' stipulation, the
referee accepted the disciplinary
complaint's allegations to establish the
factual basis for the counts charged.
Attorney Mandelman and the OLR jointly
recommended a sanction consisting of a one-
year suspension of Attorney Mandelman's law
license effective April 1, 2007, which is
when Attorney Mandelman could have been
eligible for reinstatement following his one-
year suspension in 2006. Attorney Mandelman
also stipulated to bear the costs of this
disciplinary proceeding and pay restitution
to clients S.M. and B.S. The referee
accepted the parties' stipulated
recommendation for the sanction, costs, and
restitution.
¶24 No appeal has been filed. This
court reviews the matter according to the
provisions of SCR 22.17(2). We approve and
adopt the referee's findings and conclusions
regarding Attorney Mandelman's misconduct.
Also, we conclude the seriousness of
Attorney Mandelman's professional misconduct
warrants license suspension of one year. We
depart, however, from the referee's
recommendation that the suspension should be
retroactive to April 1, 2007. The court
will impose whatever sanction it determines
is appropriate to achieve the goals of
lawyer discipline, regardless of the
referee's recommendation. In re
Disciplinary Proceedings Against Widule,
2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d
686.
¶25 In response to this court's order,
the parties filed memoranda addressing the
question of discipline. The OLR argues a
one-year suspension is appropriate in view
of numerous cases involving similar
misconduct. See, for example, In
re
Disciplinary Proceedings Against Kalal,
2005
WI 138, 286 Wis. 2d 10, 704 N.W.2d 575; In
re Disciplinary Proceedings Against
Archie,
205 Wis. 2d 122, 555 N.W.2d 378 (1996). The
OLR observes that little of the misconduct
post-dated the most recent suspension, and
nine months suspension resulting from
Attorney Mandelman's 2006 discipline
together with an additional 12 months would
be sufficient. The OLR contends that while
retroactive suspensions are not commonplace,
they do not lack precedent. See In re
Disciplinary Proceedings Against Gilbert,
2004 WI 144, 276 Wis. 2d 395, 689 N.W.2d
50.
¶26 Attorney Mandelman contends a one-
year license suspension retroactive to April
1, 2007, would be appropriate. He says he
has taken responsibility for his misconduct
by stipulating to all of the complaint's
fact allegations as well as stipulating to
the duration of the discipline sought by the
OLR. He notes he had the option of seeking
reinstatement but instead sought to resolve
this matter before proceeding. Thus, he
contends, a retroactive suspension would
properly take into account all those
factors.
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¶27 We acknowledge Attorney Mandelman
has accepted responsibility for his
misconduct. We conclude, nevertheless, 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. In view of these
significantly aggravating factors, we
conclude that a retroactive suspension fails
to achieve the goals of legal discipline.
Accordingly, the one-year license suspension
shall be effective the date of this order.
¶28 IT IS ORDERED that the license of
Michael D. Mandelman to practice law in
Wisconsin is suspended for a period of one
year, effective the date of this order.
¶29 IT IS FURTHER ORDERED that to the
extent he has not yet done so, Michael D.
Mandelman shall comply with SCR 22.26
regarding the duties of a person whose
license to practice law in Wisconsin has
been suspended.
¶30 IT IS FURTHER ORDERED that Michael
D. Mandelman pay restitution as determined
in the referee's report. If the restitution
is not paid within 60 days of this order,
Michael D. Mandelman's license to practice
law in Wisconsin shall remain suspended
until further order of the court.
¶31 IT IS FURTHER ORDERED that within 90
days of the date of this order Michael D.
Mandelman pay to the Office of Lawyer
Regulation the costs of this proceeding. If
costs are not paid within the time specified
and absent a showing to this court of his
inability to pay the costs within that time,
Michael D. Mandelman's license to practice
law in Wisconsin shall remain suspended
until further order of the court.
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