The Wisconsin Supreme Court kicked off its first round of oral arguments of its current term on Wednesday.
The argument session was the first for Justice Rebecca Dallet, who was elected in April. Justice Shirley Abrahamson, who recently revealed that she had been diagnosed with cancer, participated in the arguments by telephone.
The justices ended the day with an oral argument involving an ex-Milwaukee lawyer’s challenge of a recommendation that the justices reject his bid for the reinstatement of his law license.
The court revoked Brian Mularski’s license in 2010 over 13 counts of misconduct involving three client matters and grievances from eight different clients.
According to the allegations, Mularski had settled a personal-injury case without a client’s permission, forged a settlement check in a separate personal-injury case and lied to a client by saying that a case had been settled when it in fact had been dismissed for Mularski’s failure to prosecute.
At the time of the court’s decision, the Office of Lawyer Regulation was also investigating eight grievances filed against Mularski. All told, the OLR alleged he owed about $19,000 worth of restitution to five of his former clients.
Mularski had petitioned the court for consensual revocation, saying he could not defend himself against the allegations of misconduct as well as those in the pending grievances.
The court, in addition to indefinitely banning Mularski in 2010 from practicing law, ordered that Mularski, as a condition of any future petition for reinstatement, would have to provide an account showing that he had made restitution to the clients who were harmed by the misconduct alleged by the OLR. He had represented those clients either while he was working as a solo practitioner or for the Brookfield-based firm Kim & LaVoy.
Mularski, who graduated from Marquette University Law School in 2000, petitioned the court for reinstatement in February 2017.
After an evidentiary hearing last year, the court-appointed referee in the case, Jonathan Goodman, recommended in December that the justices reject Mularski’s request.
Goodman had found that although Mularski had demonstrated he had the moral character to practice law, Mularski had shown neither that resuming his practice would not be detrimental to the administration of justice or to the public interest nor that he had followed the terms of the revocation order from 2010.
But Mularski spent much of his time on Wednesday discussing his difficulties determining exactly what restitution he owed in a Milwaukee County criminal proceeding in which he had pleaded guilty to felony theft for embezzling thousands of dollars from the last firm he worked for: Eisenberg, Riley and Zimmerman.
Mularski noted that he had already paid $200,000 worth of restitution in the criminal case, some of which overlapped with the restitution from the revocation order from 2010.
Chief Justice Pat Roggensack and Justice Dan Kelly separately pressed Mularski on whether he had made restitution and to clients he had representing while he had his solo practice.
“So is it feasible for you to provide an accounting with respect to those clients?” asked Kelly.
“Yes sir, without a question,” Mularski said. “Those would not be an issue at all.”
“And why has that not been done yet?” said Kelly. “Did you submit anything along with your brief in this case that would indicate what, if anything, had been done to provide that accounting?”
But Kelly also grilled the OLR’s litigation counsel, Jonathan Hendrix, after Hendrix noted that Mularski’s failure to follow a divorce order had not met the court’s standard for lawyers seeking reinstatement – that their behavior be exemplary and above reproach.
“Counsel are you suggesting that any mistake reflects badly on being above reproach?” said Kelly.
Mularski told the justices on Wednesday that he needed his law license back so he could pay restitution to those clients. He said that he has applied to 300 jobs and received 7 offers but got only two of those jobs, likely because of his felony conviction. He told the justices that he works in advertising sales for the Wisconsin Gazette.
“Reentering the practice of law is the only legitimate means I have to have an earning capacity to make good and to make those clients whole,” Mularski said.
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