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ATTORNEY disciplinary
proceeding. Attorney's license
revoked.
¶1 PER CURIAM. The Office of Lawyer
Regulation (OLR) has filed a disciplinary
complaint charging Attorney Brian P.
Mularski with 13 counts of misconduct in
three client matters. Attorney Mularski is
also subject to eight pending grievance
investigations not yet charged. Attorney
Mularski petitions for the consensual
revocation of his Wisconsin law license. He
states he cannot successfully defend himself
against the professional misconduct alleged
in the complaint and the pending
investigations. Also, he states he will
perform an accounting and make the
appropriate restitution.
¶2 Referee John Fiorenza has filed his
recommendation that Attorney Mularski's
license to practice law in Wisconsin be
revoked. Referee Fiorenza also recommends
that Attorney Mularski provide an accounting
of all the funds he misappropriated, and
prove he has made restitution to those
aggrieved by his misconduct.
¶3 Attorney Mularski was admitted to
practice law in Wisconsin in 2000 and has
practiced most recently in Milwaukee. He
has not been subject to prior discipline.
His license is currently suspended, however,
for noncompliance with dues and trust
account certification requirements.
¶4 We grant the petition and revoke
Attorney Mularski's license to practice law
in this state. As a condition of any future
petition for reinstatement, Attorney
Mularski shall provide an accounting and
demonstrate he has made full restitution to
those individuals aggrieved by his
misconduct as alleged in the OLR complaint
and the pending investigations. Attorney
Mularski is ordered to pay the costs of this
proceeding.
¶5 The OLR complaint alleges the
following misconduct:
E.P. CLIENT MATTER (COUNTS 1 THROUGH 6)
¶6 In November 2004 E.P. retained
Attorney Mularski in a personal injury
matter. The contingent fee agreement was
not reduced to writing. Although Attorney
Mularski did not have E.P.'s permission to
settle the case for $45,000, Attorney
Mularski informed a casualty claims examiner
that he would settle E.P.'s claim for
$45,000 and pay the medical providers' liens
with settlement proceeds.
¶7 In mid-December 2004 Attorney
Mularski received a $45,000 check from the
insurer, along with a release to be signed
by E.P. Attorney Mularski did not inform
the lien holders of the receipt of the
funds. He deposited the funds in his law
firm's trust account, but then ceased
working at the firm. On January 5, 2005,
the firm issued a check to the Mularski Law
Offices trust account in the amount of
$40,416.67 transferring the settlement funds
(less attorney fees which had already been
paid). Attorney Mularski informed his
former firm that the settlement was supposed
to be $55,000, not the $45,000 received. He
informed the firm he would be returning the
$45,000 to the insurer and would file suit
on his client's behalf. However, when his
former law firm attempted to confirm the
settlement arrangement with the insurer, the
firm was advised the claim had been settled
for $45,000, including medical liens.
¶8 On January 8, 2005, E.P. signed a
release stating the matter had been settled
for $58,000. Attorney Mularski issued a
$10,000 check to his law office for legal
fees and a $28,000 check to E.P. He advised
E.P. he needed to resolve some issues with
the insurer before he could give her the
remainder of the settlement proceeds.
¶9 Attorney Mularski sent the insurer a
letter on February 11, 2005, stating he
would send the release that day and would be
responsible for handling the outstanding
medical liens. Attorney Mularski sent the
insurer a signed release for $45,000,
purportedly signed by E.P. However, the
signature on the release was not E.P.'s.
¶10 On April 14, 2005, Attorney Mularski
issued a check from his trust account to
E.P. for $6,124.56, with the
notation "Settlement Reimbursement."
Although Attorney Mularski's client trust
account had only $40,416.67 attributable to
E.P., he had disbursed a total of $44,124.56
from his trust account relative to E.P.'s
case.
¶11 Attorney Mularski agreed to refund
to E.P. $10,000 in fees. He refunded $6,000
from his personal funds. He did not
promptly satisfy the medical liens. During
the OLR investigation, Attorney Mularski was
unable to produce E.P.'s file or any trust
account records relating to his
representation of E.P.
¶12 The OLR's disciplinary complaint
charges six counts arising from Attorney
Mularski's misconduct in the E.P. matter:
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• Count One. By failing to reduce
his contingent fee agreement to writing,
Attorney Mularski violated former SCR 20:1.5
(c);
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• Count Two. By informing the
claims examiner that his client would settle
for $45,000, without obtaining his client's
agreement to settlement in that amount,
Attorney Mularski violated former SCR 20:1.2
(a);
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• Count Three. By failing to
provide medical lien holders with written
notice of his receipt of the settlement
funds and by failing to satisfy the liens,
Attorney Mularski violated former SCR 20:1.15
(d)(1);
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• Count Four. By disbursing
$44,124.56 from his trust account when he
was holding only $40,416.67 in trust,
thereby disbursing funds belonging to
another party, Attorney Mularski violated
former 20:1.15(b)(1);
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• Count Five. By failing to
maintain
trust account records, Attorney Mularski
violated former SCR 20:1.15(e)(6); and
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• Count Six. By making a number
of misrepresentations to the insurer and his
law firm, by modifying the release and
obtaining his client's signature on the
altered release, and by forging his client's
signature on the release which was sent to
the insurer, Attorney Mularski violated SCR
20:8.4(c).
K.C. CLIENT MATTER (COUNTS 7 THROUGH 9)
¶13 The next matter involves K.C., who
retained Attorney Mularski to represent him
regarding an automobile accident. K.C. and
his wife signed a release settling the
matter with the insurer for $19,100. The
settlement provided that funds totaling
$6,121.33 were held in Attorney Mularski's
law firm trust account to pay some of the
medical bills.
¶14 On May 26, 2006, the date the
release was signed, Attorney Mularski issued
to K.C. a check for $10,000. Checks were
also issued to three medical providers,
along with two checks to Attorney Mularski's
law firm totaling $6,355 and $55 for costs.
These disbursements left only $695 in trust
for the remaining medical bills. Attorney
Mularski failed to inform K.C. that he was
holding only $695 toward the remaining
medical bills. Also, Attorney Mularski
failed to notify the medical providers of
his receipt of the settlement funds and
failed to pay the medical liens.
¶15 On July 28, 2006, after receiving
collection notices from the remaining
medical care providers, K.C. requested
Attorney Mularski relinquish any funds held
for payment of the remaining bills.
Attorney Mularski issued a check to K.C. for
$695. The checks that had allegedly been
issued to three medical providers on May 26,
2006, were not mailed to the providers until
late September 2006 after K.C. had filed a
grievance with the OLR. Attorney Mularski
requested the medical providers accept a
reduced payment and each medical provider
negotiated a reduced amount.
¶16 As a result of Attorney Mularski's
handling of the K.C. matter, the OLR
complaint alleges three counts of
misconduct:
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• Count Seven. By failing to
submit four of his client's medical bills
and by failing to ensure payment was timely
sent to the other three medical providers,
Attorney Mularski violated SCR 20:1.3;
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• Count Eight. By failing to
adequately explain to his client that only
$695 was held to cover the remaining medical
bills, Attorney Mularski violated SCR 20:1.4
(b); and
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• Count Nine. By indicating on
the settlement statement that medical
providers had agreed to certain reductions
when they had not done so, and by indicating
to those same medical providers that the
settlement K.C. received was insufficient to
cover their bills when, in fact, it was
sufficient, Attorney Mularski violated SCR
20:8.4(c).
A.W. CLIENT MATTER (COUNTS 10 THROUGH
13)
¶17 On April 24, 2006, Allstate
Insurance Company issued a settlement check
payable to Attorney Mularski's law firm, to
Attorney Mularski's client, A.W., and to a
medical center which had a lien on the
settlement proceeds. The check was
deposited into Attorney Mularski's law firm
trust account and appeared to have been
endorsed by all three payees, including the
medical center. Attorney Mularski did not
notify the medical center of his receipt of
the settlement funds or provide any payment
of its lien.
¶18 In September 2006, when a
representative from a financial recovery
firm attempted to collect on the medical
center's lien, the representative was
informed that A.W.'s matter had been settled
and a check had been issued and negotiated.
The representative of the financial recovery
firm discovered that the medical center's
signature on the check appeared to be
forged.
¶19 Attorney Mularski informed the OLR
that another financial recovery firm, AAM,
Inc., had authorized him to endorse the
check on the medical center's behalf.
Attorney Mularski stated he forwarded a copy
of the check to AAM. Attorney Mularski
eventually paid the medical center's lien
with his personal funds after a grievance
was filed with the OLR.
¶20 Attorney Mularski provided the OLR
with a copy of a letter he allegedly sent to
AAM, which was later found to have been
fabricated and was provided to mislead the
OLR. AAM was not representing the medical
center, but was retained to collect a bill
A.W. incurred with the Itasca Fire
Department. Although Attorney Mularski had
informed AAM that a check had been cut for
the Itasca Fire Department, AAM never
received the check. Eventually, A.W. paid
the bill directly.
¶21 As a result of his misconduct in the
A.W. matter, Attorney Mularski was charged
with four violations:
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• Count Ten. By failing to notify
a medical provider of the settlement and by
immediately distributing the settlement
proceeds to his client, despite the
existence of a lien by the medical provider,
Attorney Mularski violated former SCR 20:1.15
(d);
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• Count Eleven. By endorsing a
check on a medical provider's behalf when he
did not have the authority to do so,
Attorney Mularski violated SCR 20:8.4(c);
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• Count Twelve. By
misrepresenting to the OLR the circumstances
under which he endorsed the check on the
medical provider's behalf, thus making a
misrepresentation during the course of an
investigation, Attorney Mularski violated
SCR 22.03(6); and
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• Count Thirteen. By submitting
to
the OLR a fabricated letter allegedly having
been sent to a collection agency, when the
letter had in fact not been sent and
contained information contrary to the
information Attorney Mularski had previously
provided the OLR during the course of the
investigation, Attorney Mularski violated
SCR 22.03(6).
¶22 In addition to the allegations of
the OLR complaint, Attorney Mularski states
that he is unable to defend himself against
allegations made in eight pending grievance
investigations for which no disciplinary
complaint has yet been filed, as follows:
C.U. CLIENT MATTER
¶23 Attorney Mularski was retained to
represent C.U. in a personal injury matter.
After obtaining a settlement on C.U.'s
behalf, Attorney Mularski failed to hold the
funds in trust, failed to satisfy a medical
lien held by C.U.'s health insurance
company, failed to maintain proper trust
account records and, during the OLR's
investigation, Attorney Mularski made
misrepresentations to the OLR regarding his
communications with and records obtained
from a bank. The OLR began an investigation
into misconduct involving trust account
violations and misrepresentation to the OLR
during its investigation.
J.C. CLIENT MATTER
¶24 After the statute of limitations had
run, Attorney Mularski filed a complaint in
a personal injury matter on behalf of J.C.
alleging that J.C.'s accident had occurred
one year after its actual occurrence. The
complaint was eventually dismissed for
failure to prosecute. Attorney Mularski
never informed J.C. of the dismissal;
instead, he forwarded a fabricated release
purportedly from the defendant's insurance
company allegedly settling the matter for
$125,000. After making several
misrepresentations to J.C., Attorney
Mularski admitted to her that he had made
mistakes in her case that would prevent her
from collecting from the defendant's
insurance company. The OLR commenced an
investigation regarding misconduct involving
lack of diligence, failure to properly
inform the client of circumstances regarding
her case, lack of candor toward a tribunal,
and dishonesty, fraud, deceit or
misrepresentation.
K.W. CLIENT MATTER
¶25 Attorney Mularski was retained by
K.W. to file a claim against the City of
Milwaukee. Attorney Mularski told K.W. her
claim had settled and would be paid out over
two years. K.W. began receiving monthly
payments eventually totaling $30,000,
allegedly from the proceeds of the purported
settlement. Attorney Mularski failed to
respond to K.W.'s request for her file.
When K.W. contacted the City of Milwaukee
regarding the matter, she was informed no
claim had been filed on her behalf and no
settlement had been reached. Attorney
Mularski admitted that he had been paying
K.W. with his personal funds. The OLR began
an investigation regarding misconduct
involving diligence, communication, and
conduct involving dishonesty, fraud, deceit
or misrepresentation.
E.D. CLIENT MATTER
¶26 Attorney Mularski was retained by
E.D. in a personal injury matter, which
settled for the policy limit of $50,000.
Attorney Mularski also settled with the
driver individually for an additional
$10,000. Attorney Mularski has been unable
to provide any releases or settlement
documents related to E.D.'s case. E.D.
received some of the settlement proceeds and
was told additional funds would be held to
pay his medical providers. Although one
provider was paid by Attorney Mularski,
another was never paid, resulting in a
judgment being entered against E.D. The OLR
began an investigation into misconduct
involving communication with a client and
conduct involving dishonesty, fraud, deceit
or misrepresentation.
C.D. CLIENT MATTER
¶27 Attorney Mularski represented C.D.
in a personal injury matter that settled for
$44,750. Attorney Mularski retained $10,000
of the settlement funds to pay various
creditors; however, the creditors were not
paid. Records from Attorney Mularski's
former law firm indicate that Attorney
Mularski forged endorsements on the checks
made out to C.D.'s medical providers and
converted the funds for his personal use.
Attorney Mularski has since repaid the firm
and the firm in turn has paid C.D.'s
creditors. The OLR commenced an
investigation into misconduct involving
trust account violations and dishonesty,
fraud, deceit or misrepresentation.
S.C. CLIENT MATTER
¶28 Attorney Mularski represented S.C.
in a small claims action against her
landlord and obtained a judgment on S.C.'s
behalf of $5,000 plus costs. S.C.'s
grievance asserts that Attorney Mularski
failed to take adequate steps to collect on
the judgment and misled her regarding a
court date allegedly set to hear the
collection matter. The OLR commenced an
investigation regarding a lack of diligence
and dishonesty, fraud, deceit or
misrepresentation.
J.H. CLIENT MATTER
¶29 Attorney Mularski represented J.H.
in personal injury and property damage
matters. Attorney Mularski obtained a
settlement on J.H.'s behalf in both
matters. Attorney Mularski conceded he
continues to hold funds belonging to J.H.,
has failed to act with diligence in his
representation of J.H., and has failed to
adequately communicate with J.H. The OLR
commenced an investigation regarding
misconduct involving a lack of diligence,
failure to communicate, and trust account
violations.
S.D. CLIENT MATTER
¶30 Attorney Mularski represented S.D.
in a personal injury matter. Attorney
Mularski represented to S.D. that he had
obtained a settlement on her behalf and sent
her approximately $80,000. There is no
evidence that a settlement was ever reached
and S.D. signed no papers with respect to
any settlement. S.D. claims Attorney
Mularski failed to communicate throughout
the representation and she never entered
into a written fee agreement, despite
Attorney Mularski's representing her on a
contingent fee basis. The OLR commenced an
investigation into misconduct involving
failure to communicate, fees, and
dishonesty, fraud, deceit or
misrepresentation.
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¶31 After Attorney Mularski filed the
petition for consensual revocation, the
court issued orders to show cause requiring
the parties to address restitution. In
response, the OLR contends that of the 11
client matters, five former clients are
entitled to restitution in amounts ranging
from just over $700 to approximately
$12,000, for a total of approximately
$19,000. Attorney Mularski asserts that no
funds are due to any client. His response
is not consistent with his petition, which
states that he would provide an accounting
and make appropriate restitution.
¶32 We accept Attorney Mularski's
petition for the revocation of his license
to practice law in Wisconsin. See SCR
22.19
(1), (2), and (5). The seriousness of
Attorney Mularski's misconduct demonstrates
the need to revoke his law license to
protect the public, the courts, and the
legal system from the repetition of
misconduct, to impress upon Attorney
Mularski the seriousness of his 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.
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¶33 We order restitution to be paid as a
condition of any reinstatement petition. In
the case of In re Disciplinary Proceedings
Against Dugan, 112 Wis. 2d 653, 656-57,
334
N.W.2d 228 (1983), the court revoked the
attorney's license and required him to show
he made full restitution to his clients at
such time as he would seek reinstatement.
See also In re Disciplinary
Proceedings
Against Grade, 2007 WI 108, ¶15, 304 Wis.
2d
531, 735 N.W.2d 523. We employ that
procedure here. At such time as he would
seek reinstatement, Attorney Mularski shall
prove he has made full restitution to those
individuals aggrieved by his misconduct as
set forth in the complaint and the pending
OLR investigations. See SCR 22.29(4m).
¶34 We impose full costs. The OLR seeks
costs totaling $1,304.82 as of December 22,
2009. Under SCR 22.24(1m), to award less
than full costs, the court must
find "extraordinary circumstances."
Attorney Mularski has not objected to the
costs and has not alleged extraordinary
circumstances to justify a reduction in
costs. Consequently, Attorney Mularski
shall bear the entire costs of this
disciplinary proceeding.
¶35 IT IS ORDERED that the license of
Brian P. Mularski to practice law in
Wisconsin is revoked, effective the date of
this order.
¶36 IT IS FURTHER ORDERED that Brian P.
Mularski comply with the provisions of SCR
22.26 concerning the duties of a person
whose license to practice law in Wisconsin
has been revoked.
¶37 IT IS FURTHER ORDERED that as a
condition of reinstatement of his license to
practice law in Wisconsin, Brian P. Mularski
furnish a complete accounting and prove he
has made full restitution to or settled all
claims of all persons harmed by the
misconduct subject of this proceeding as set
forth in the complaint and investigations
appended to the petition for revocation.
¶38 IT IS FURTHER ORDERED that within 60
days of the date of this order, Attorney
Brian P. Mularski shall pay the Office of
Lawyer Regulation the costs of this
proceeding.
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