¶2 When we review a referee's report and recommendation in an attorney disciplinary case, we affirm the referee's findings of fact unless they are found to be clearly erroneous, but we review the referee's conclusions of law on a de novo basis. In re Disciplinary Proceedings Against Inglimo, 2007 WI 126, ¶5, 305 Wis. 2d 71, 740 N.W.2d 125. We determine the appropriate level of discipline to impose given the particular facts of each case, independent of the referee's recommendation, but benefiting from it. In re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶3 After reviewing this matter and considering Attorney Mandelman's appeal, we accept the referee's factual findings and legal conclusions based on the parties' stipulation. We further agree that the 22 counts of misconduct support the revocation of Attorney Mandelman's license to practice law in this state, which we make effective as of the effective date of his prior suspension. Because the record is not sufficient to award restitution to any particular person, we direct Attorney Mandelman to work with the OLR and his former colleague, Attorney Jeffrey A. Reitz, to determine who is owed money from the trust accounts utilized by Attorney Mandelman and in what amounts. Finally, because Attorney Mandelman litigated this matter vigorously prior to entering into the stipulation, we order Attorney Mandelman to pay the full costs of this proceeding, which were $16,943.16 as of April 2, 2014.

¶4 The OLR initiated this disciplinary proceeding with the filing of a 45-count complaint. Attorney Mandelman filed an answer, which effectively denied many of the complaint's factual allegations and expressly denied the counts of professional misconduct. During the pre-hearing phase of this proceeding, the OLR dismissed 23 counts due to evidentiary problems, leaving 22 counts to be resolved.

¶5 After Attorney Mandelman had filed a summary judgment motion on the 22 remaining counts and the OLR had filed its response, Attorney Mandelman entered into a stipulation, pursuant to which he withdrew his answer to the complaint and pled no contest to the remaining 22 counts of misconduct. He agreed in the stipulation that the referee could use the relevant allegations of the complaint as the factual basis for finding misconduct on those remaining 22 counts. He further agreed with the OLR's sanction request for the revocation of his license to practice law in this state, retroactive to May 29, 2009, the effective date for his most recent one-year suspension. In re Disciplinary Proceedings Against Mandelman, 2009 WI 40, ¶28, 317 Wis. 2d 215, 765 N.W.2d 788 (Mandelman IV).

¶6 The stipulation contained the necessary representations by Attorney Mandelman and the OLR. Specifically, the parties agreed that Attorney Mandelman's plea of no contest and his stipulation to the OLR's requested level of discipline was not the result of plea bargaining. Attorney Mandelman represented that he understood the allegations of misconduct against him and his right to contest those allegations; that he understood the ramifications of his entry into the stipulation; that the understood his right to consult counsel and that he had, in fact, retained counsel in this matter; and that his entry into the stipulation had been knowing and voluntary.

¶8 Attorney Mandelman was admitted to the practice of law in this state in January 1980. He has been the subject of professional discipline on six previous occasions:

¶9 Some general background information is necessary for a number of the counts of misconduct in the present disciplinary proceeding. Prior to 1999 Attorney Mandelman was the sole owner of his own law firm. He maintained client trust accounts at what were then known as M&I Bank and TCF Bank.

¶10 In 1999 Attorney Jeffrey Reitz joined Attorney Mandelman's firm. From 1999 to November 2001, Attorneys Mandelman and Reitz were co-owners of the law firm, which was known as Reitz and Mandelman LLC. During this time, the firm used the M&I Bank trust account exclusively. Trust account funds remained in the open but dormant TCF Bank trust account.

¶11 Between November 2001 and May 2005, the name of the law firm became Reitz, Mandelman & Lawent LLC. Attorney Reitz, however, became the sole shareholder for a large part of this time, with Attorney Mandelman becoming an employee of the firm. In June 2004, when disciplinary actions were pending against both Attorney Reitz and Attorney Mandelman, they formed a new service corporation, which they named Heartland Legal Group S.C., although they continued to practice under the name Reitz, Mandelman & Lawent LLC.

¶12 In December 2002, the law firm opened a new trust account with Tri City Bank. As had occurred with the TCF account, Attorneys Mandelman and Reitz did not close the M&I trust account. That account simply sat dormant for approximately the next six years, with only a few disbursements being made from it over that span. As of December 31, 2006, that account still held $6,307.02, with outstanding un-cashed disbursement checks against the account of $5,542.58 and another $994.44 in funds for which no disbursement checks had been written.

¶13 When Attorney Reitz's license was suspended in May 2005, Attorney Mandelman re- acquired full ownership of the law firm and formed another new service corporation by the name of Mandelman & Associates, S.C. Despite the creation of this new service corporation and the lack of any limited liability company, Attorney Mandelman continued to refer to the law firm as a couple of different limited liability companies, including on his letterhead. In addition, Attorney Mandelman also ceased using the Tri City Bank trust account and opened yet another new client trust account at Pyramax Bank. As with the prior trust accounts, the Tri City Bank trust account essentially lay dormant for the next three years, with the exception of a few disbursements.

¶16 Count three of the complaint related to J.N., a client of Attorneys Mandelman and Reitz in 2003 and 2004. When Attorney Reitz's license was suspended in May 2005 and Attorney Mandelman resumed ownership of the law firm, $700 in settlement funds belonging to J.N. remained in the Tri City Bank trust account. Neither Attorney Mandelman nor Attorney Reitz ever paid the $700 sitting in the Tri City Bank trust account to J.N. The referee concluded that Attorney Mandelman's failure to disburse the $700 to J.N. constituted a violation of SCR 20:1.15(d)(1).

¶17 Counts four through seven relate to Attorney Mandelman's representation of and appointment as guardian ad litem for S.M. in connection with the approval and implementation of a minor settlement. When the circuit court approved the settlement, it directed Attorney Mandelman to purchase an annuity for S.M. and then to place the remaining settlement funds into his trust account. The court further instructed Attorney Mandelman to negotiate reduced payments to the subrogated medical providers who had provided care to S.M. Specifically, the court's order stated that if the remaining settlement funds were insufficient to pay the subrogated medical providers, Attorney Mandelman was required to reduce his fee so that the providers could be paid first. Any balance remaining after the payment of the subrogated medical providers' claims and Attorney Mandelman's fee was to be paid to S.M.

¶18 On January 18, 2006, the sum of $30,870 in settlement funds for S.M. was deposited into Attorney Mandelman's Pyramax Bank trust account. Despite the circuit court's order, Attorney Mandelman immediately disbursed $18,125 to himself in full payment of his one-third contingent fee.

¶20 The referee concluded that these facts supported four counts of misconduct, including a lack of diligence (SCR 20:1.3), a failure to pay trust account funds to their proper recipient over the approximately six months between the deposit of those funds in his trust account and the suspension of Attorney Mandelman's license (SCR 20:1.15(d)(1)), disobedience of the trial court's order to pay the subrogated parties before collecting his fee (SCR 20:3.4 (c)), and engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation by immediately taking his full contingent fee before paying the subrogated parties (SCR 20:8.4(c)).

¶22 The referee determined that by failing to resolve the proper division of the $75,449.99 for more than four years, Attorney Mandelman had failed to act with reasonable diligence and promptness, in violation of SCR 20:1.3. She also concluded that the multi-year delay in disbursing the funds had constituted a violation of former SCR 20:1.15(b) and current SCR 20:1.15(d)(1).

¶24 The referee determined that the negative balances in the four subsidiary accounts resulting from disbursements of more funds from those subsidiary accounts than were present in those accounts had resulted in the improper use of other clients' funds, in violation of former SCR 20:1.15(a), current SCR 20:1.15(e)(5)(a), and current SCR 20:1.15(f)(1)(b). The referee also determined that Attorney Mandelman's payment to his law firm of money from his firm's trust account that the law firm was not entitled to receive had constituted a violation of SCR 20:8.4(c).

¶26 The referee found two ethical violations based on these facts. First, he determined that Attorney Mandelman had failed to create and retain complete and accurate trust account records, in violation of SCR 20:1.15(e)(6). He also concluded that Attorney Mandelman's failure to list his active trust accounts on his dues statement and to certify that he was in compliance with his record-keeping and overdraft reporting requirements had constituted a violation of SCR 20:1.15(i)(1) and (2).

¶27 Counts 26 and 28-30 relate to the commingling of Attorney Mandelman's personal and business funds with client funds in his client trust accounts and the failure to report certain income on the tax returns of Attorney Mandelman or his businesses. In the years that they practiced together, Attorneys Mandelman and Reitz personally carried significant amounts of debt, as did the law firm that they owned. The law firm's business accounts were also frequently overdrawn. Those firm business accounts, as well as personal accounts belonging to Attorneys Mandelman and Reitz, were subject to liens and garnishments at various points in this time period.

¶28 In May 2003 Attorney Mandelman incorporated Heartland Holding Group, Inc. (Heartland) for the purpose of investing in real estate. Attorney Mandelman's co-owner of Heartland was an individual by the name of Steve Weston. Attorney Mandelman reported in a May 2007 deposition in his reinstatement proceeding that many of his assets were actually titled in Weston's name. Attorney Reitz was listed as the registered agent for Heartland.

¶29 In October 2004, Attorney Mandelman endorsed and deposited a check in the amount of $189,451 payable to Heartland into the law firm's Tri City Bank trust account. Over the next three months, $188,451 of this amount was disbursed from the trust account via 32 separate trust account checks. Although Attorney Mandelman was not an owner of the law firm at this time and Attorney Reitz had no ownership interest in Heartland, 25 of these trust account checks were made payable to Attorney Reitz personally and another six checks were made payable to the law firm. One such check was paid to Paul J. Stein "for Payroll Account." The last portion of these funds was disbursed to Attorney Mandelman personally via a June 2, 2005 check.

¶31 The referee concluded that the failure to report the Heartland real estate transaction and any accompanying gains or losses on any corporate or personal income tax return had constituted a violation of SCR 20:8.4(c) and the standard of conduct set forth in case law such as In re Disciplinary Proceedings Against Owens, 172 Wis. 2d 54, 56-57, 492 N.W.2d 157 (1992), which is enforced via SCR 20:8.4(f).

¶34 Count 34 relates to another "Mandelman" subsidiary account that was created in the RPL trust account following Attorney Mandelman's suspension in July 2006. Over the next approximately 18 months, there was a relatively large number of transactions attributed to this "Mandelman" subsidiary account. Some of these transactions do not appear to have related to any particular client and some did not appear on the RPL trust account ledgers. In addition, more funds were withdrawn from this subsidiary account than were deposited into it, resulting in a negative balance. The referee concluded that by using the RPL client trust account to make unrecorded and unexplained personal and business deposits and withdrawals after his 2006 suspension, Attorney Mandelman had violated SCR 20:8.4(c).

¶37 Count 42 also relates to inaccurate information on Attorney Mandelman's federal tax return, although this time for the 2006 tax year. Specifically, the referee found that Attorney Mandelman had reported $33,888.89 in residual income paid to him from the RPL law firm after his July 2006 suspension, when the RPL trust account records showed that he had been paid at least $65,614.93 in legal fees during this time. The referee determined that this underreporting of income, which she found to have been reckless, had also violated the standard set forth in Owens, 172 Wis. 2d at 56-57, contrary to SCRs 20:8.4(f) and 20:8.4(c).

¶38 Counts 43 and 44 relate to the representation of B.R., who had been injured in a motorcycle accident in April 2005. Shortly after B.R. had retained the law firm, Attorney Reitz had left the firm due to his disciplinary suspension and Attorney Mandelman worked on B.R.'s case. When Attorney Mandelman's license was suspended, he did not inform B.R. of his suspension or advise him that he should find another attorney of his choosing.

¶40 The referee concluded that Attorney Mandelman's failure to notify B.R. of his July 1, 2006 suspension and to advise B.R. to seek representation of his choice elsewhere had constituted a violation of SCR 22.26(1), which is enforced via SCR 20:8.4 (f). In addition, Attorney Mandelman's filing of an affidavit that falsely claimed that he had notified all clients with pending matters and that a list of all clients with pending matters was attached to the affidavit violated SCR 20:8.4(c) and SCR 22.26(1)(e), which is enforced via SCR 20:8.4 (f).

¶44 On the mitigating side, the referee acknowledged Attorney Mandelman's claim that he had been suffering from chronic fatigue due to having Hepatitis C. The referee further acknowledged that during the time period relevant to this proceeding, Attorney Mandelman had undergone another round of therapy that had not worked. She also considered the affidavit of a doctor that Attorney Mandelman had submitted. The referee stated, however, that while the affidavit had addressed the effects of Hepatitis C in general, it had failed to aver that Attorney Mandelman had actually suffered from those side effects during the relevant time period.

¶45 With respect to her recommendation for a May 2009 effective date, the referee noted that the misconduct at issue here occurred primarily during 2004-2007, which was the same time period as the misconduct that was at issue in Mandelman IV. Moreover, Attorney Mandelman's license has remained suspended well past the one-year period of suspension imposed in that case. See In re Disciplinary Proceedings Against Cooper, 2013 WI 55, ¶25, 348 Wis. 2d 266, 833 N.W.2d 88. The referee concluded that under these circumstances the period of revocation should run concurrently with the one-year suspension that began on May 29, 2009.

¶47 The referee did not make any recommendation with respect to restitution. The OLR filed a statement on restitution, which did not ask for any restitution award. With respect to the representations of B.R. and G.W., the OLR notes that there was no allegation or finding that Attorney Mandelman had misappropriated or misapplied client funds. As to the various trust account violations, the OLR asserts that there is not a readily ascertainable amount that would meet its criteria for restitution and that it could ask this court to award to specific payees. It states that it has not been able to determine whether the funds in the various trust accounts were or were not ultimately disbursed to the rightful owners. The OLR notes that in the Reitz decision, this court ordered Attorney Reitz to distribute all funds in his trust accounts to the rightful owners, or if the rightful owners could not be identified, to transfer the funds to the state treasurer's office as unclaimed or unidentifiable property. 346 Wis. 2d 375, ¶42. The OLR states that Attorney Mandelman has agreed to work with Attorney Reitz and the OLR to accomplish the same task for his clients.

¶48 We now turn to Attorney Mandelman's appeal, which is somewhat strange in that he is not asking this court to overturn any of the legal conclusions of misconduct nor is he requesting a less severe sanction than that recommended by the referee.

¶49 Attorney Mandelman specifically does not challenge any of the factual findings that underlie the counts of misconduct or the legal conclusions of misconduct. In light of Attorney Mandelman's stipulation to those facts, we accept the referee's findings of fact based on the remaining allegations of the complaint. We further determine that those findings adequately support the legal conclusion that Attorney Mandelman did engage in the 22 ethical violations alleged in the remaining counts of the complaint.

¶50 The primary focus of Attorney Mandelman's appeal is essentially a number of arguments urging this court to consider additional information regarding his accountant and the effects of his Hepatitis C infection as mitigating factors that would lessen his culpability for his violations without changing the end result recommended by the referee. He contends that the referee's discussion of mitigating factors contained erroneous findings of fact and did not give sufficient consideration to these two mitigating factors.

¶51 With respect to the actions of Hackbarth, Attorney Mandelman relies extensively on opinions from the OLR's accountant expert, who disputed Hackbarth's analysis of certain issues and the way that certain items had been reported on Attorney Mandelman's income tax returns. Attorney Mandelman asserts that he expected Hackbarth, as a certified public accountant, to make a proper evaluation of the records that he and the law firm submitted to her so that she could compile accurate accounting records for the law firm and prepare his personal income tax returns. He further contends that it was Attorney Reitz's responsibility to ensure that Hackbarth had all of the information she needed to do both the accounting and the tax return preparation. If Hackbarth did not have all of the necessary information, Attorney Mandelman argues that it was her responsibility to make this fact known to him so that he could get her everything she needed.

¶52 We agree with the OLR's contention that Attorney Mandelman never explicitly argued to the referee that his reliance on Hackbarth should be considered a mitigating factor. In his statement in support of the stipulation, which was provided to the referee before she prepared her report, Attorney Mandelman did discuss generally his view of how things had operated with respect to the law firm's trust accounts and the preparation of his income tax returns and his view that Hackbarth's record-keeping and preparation of his tax returns had been substandard. This discussion, however, occurred in the context of providing "background information" about the trust account violations and of arguing that the referee should conclude that his conduct with respect to the false income tax returns was not intentionally fraudulent. Attorney Mandelman did not mention his reliance on Hackbarth as a mitigating factor in the section of his memorandum discussing mitigating factors. Thus, the referee did not err in failing to include an explicit discussion of Hackbarth's shortcomings in the section of her report dealing with mitigating factors. Moreover, the limited information included in Attorney Mandelman's memorandum in support of the stipulation did not demonstrate that his reliance on Hackbarth had been reasonable and in good faith.

¶54 We acknowledge that Dr. Karos' affidavit not only discussed generally the side effects of the condition and the treatments, but also indicated that the disabling fatigue that accompanies the condition and its treatments did afflict Attorney Mandelman. Nonetheless, the affidavit did not provide all of the necessary evidence to prove that the Hepatitis C should be a mitigating factor. "A medical condition will not be considered in mitigation of discipline unless that condition is explicitly found to have caused the misconduct." In re Disciplinary Proceedings Against Schwartz, 134 Wis. 2d 18, 22, 397 N.W.2d 98 (1986). Dr. Karos did not state when Attorney Mandelman had suffered the fatigue and the other side effects (i.e., whether at the time of some or all of the misconduct). He also never opined that the fatigue or the other side effects had been a cause of Attorney Mandelman's misconduct. Thus, the referee did not err in refusing to rely on the Hepatitis C infection as a reason to recommend a less severe sanction, especially where Attorney Mandelman had stipulated to the level of discipline.

¶55 Attorney Mandelman also challenges on appeal the referee's statement that his misconduct was as serious, if not more so, than the misconduct described in the Gedlen, Sheehan, and Weigel decisions.

¶56 It is true that not all of the misconduct that occurred in Gedlen, Sheehan, and Weigel is also present in this case. That is not unusual, however. Rarely do two attorney discipline cases involve precisely the same set of facts or the exact same list of violations. What is important is that in those decisions, the attorney's license to practice law in this state was revoked, and their misconduct was not clearly more serious than the misconduct committed by Attorney Mandelman.

¶58 We further conclude that a retroactive effective date of Attorney Mandelman's suspension would be appropriate under these circumstances. We have previously stated, including in a prior decision involving Attorney Mandelman, that retroactive effective dates of suspensions and revocations may be appropriate where the "'misconduct occurred prior to the [earlier] disciplinary proceeding and [the attorney's] license has remained suspended well beyond the period of suspension previously imposed.'" Cooper, 348 Wis. 2d 266, ¶25 (quoting Mandelman II, 182 Wis. 2d at 592). The misconduct at issue in this case did occur before the prior proceeding and Attorney Mandelman's license has remained suspended from May 2009 to the present time, a much longer period than the one-year suspension imposed in Mandelman IV.

¶59 Attorney Mandelman does not object to the referee's recommendation that he should bear the full costs of this proceeding. Although he ultimately stipulated to the remaining 22 ethical violations, he had vigorously litigated this matter up to that point, which necessitated the expenses incurred by the OLR and the referee. Consequently, we see no reason to depart in this case from our general policy of imposing full costs upon an attorney who engaged in misconduct.

¶60 Finally, we address the issue of restitution. Although it does appear that there were funds in the various trust accounts Attorney Mandelman or his firm maintained that were never disbursed to the proper clients or third parties before those trust accounts were closed, there is a lack of records from which the OLR or this court can determine what amounts are owed and to whom. Consequently, we conclude that there is not a sufficient basis upon which we could order restitution in favor of any particular client or third party.

¶61 Because our inability to order restitution to specific persons stems from the lack of records caused by Attorney Mandelman and/or his colleagues, we are unwilling simply to disregard the issue of restitution completely. First, we note that in order for Attorney Mandelman to petition for reinstatement, he will be required to allege in good faith and then to prove that he "has made restitution to or settled all claims of persons injured or harmed by [his] misconduct . . . . or, if not, [his] explanation of the failure or inability to do so." SCR 22.29(4m). We also conclude that we should follow the path we took with Attorney Reitz in his disciplinary proceeding, where we ordered him to disburse all funds in his trust account to their rightful owners or to transfer the funds to the state treasurer's office if the rightful owner cannot be identified or located. Reitz, 346 Wis. 2d 375, ¶¶40, 42. The OLR states that Attorney Reitz has been working with that agency to determine the former law firms' restitution obligations and that Attorney Mandelman has agreed to work with the OLR and Attorney Reitz to complete that endeavor. We formalize that obligation here.

¶62 IT IS ORDERED that the license of Michael D. Mandelman to practice law in Wisconsin is revoked, effective May 29, 2009.

¶63 IT IS FURTHER ORDERED that Michael D. Mandelman shall work with the Office of Lawyer Regulation and Jeffrey A. Reitz to determine whether any of the funds in the client trust accounts he controlled should have been paid to particular individuals or entities and, if so, in what amounts. If such a determination is made, Michael D. Mandelman shall pay the amount owed to the applicable individual or entity.

¶64 IT IS FURTHER ORDERED that within 60 days of the date of this order, Michael D. Mandelman shall pay to the Office of Lawyer Regulation the costs of this proceeding.

¶65 IT IS FURTHER ORDERED that, if Michael D. Mandelman is able to determine that restitution is owed to a particular individual or entity, the payment of restitution shall occur before the payment of costs to the Office of Lawyer Regulation.