Public Reprimand of Mark R. Mullen

The Office of Lawyer Regulation (OLR) and Mark R. Mullen, Chippewa Falls, entered into an agreement for imposition of a public reprimand, pursuant to SCR 22.09(1). A Wisconsin Supreme Court-appointed referee approved the agreement and issued the public reprimand on Sept. 10, 2013, in accordance with SCR 22.09(3).

In November 2012, the assigned counsel division of the Office of the State Public Defender (SPD) reported information to the OLR to support an allegation that Mullen’s law firm engaged in acts that constituted stealing from the SPD. The division is responsible for appointing private attorneys to SPD cases and for auditing and paying bills submitted by appointed private counsel.

An intern at Mullen’s firm informed the SPD that a paralegal at the firm had been billing the SPD for the intern’s hours and the paralegal’s hours, in violation of the rules governing appointed counsel. On Nov. 14, 2012, pursuant to PD 1.03(3), Mullen was temporarily suspended from the SPD certification lists.

Mullen acknowledged that he had notice that it was impermissible to bill the SPD for administrative assistant time, and that his firm in fact billed administrative assistant time to the SPD as attorney time.

The paralegal told the OLR that Mullen instructed her to bill Mullen’s hours and her own hours to the SPD. The paralegal further informed the OLR that when she began working for Mullen’s firm, Mullen provided her with his appointed-counsel identification number and password and instructed her on how to bill the SPD on its website.

In an email to the SPD, Mullen stated his intention to voluntarily decertify himself and remove his name from all SPD certification lists per SPD rule 1.07. Mullen also agreed to a 100-hour reduction from his pending SPD invoices.

By charging and collecting fees from the SPD for work performed in part by his paralegal, Mullen violated SCR 20:1.5(a).

By failing to make reasonable efforts to establish internal policies and procedures designed to identify and prevent improper billing of the SPD by his firm’s attorneys, Mullen violated SCR 20:5.1(a).

By failing to make reasonable efforts to establish internal policies and procedures designed to identify and prevent improper billing by his firm via the conduct of his paralegal, and by failing to have in place adequate supervisory measures, Mullen violated SCR 20:5.3(a).

By directing his paralegal to bill the SPD for work she performed in part, and thereby directing the paralegal to engage in conduct that would have violated SCR 20:8.4(c) had he engaged in the conduct himself, Mullen violated SCR 20:5.3(c) and 20:8.4(a).

By establishing an office procedure in which his paralegal was to bill the SPD for work performed at least in part by the paralegal, in violation of SPD billing rules, Mullen violated SCR 20:8.4(c).

Mullen had no prior discipline.

Private Discipline

The Wisconsin Supreme Court permits the Office of Lawyer Regulation (OLR) to publish, for educational purposes, a summary of facts and professional conduct rule violations in matters in which the OLR imposed private reprimands. The summaries do not disclose information identifying the reprimanded attorneys. The summaries of selected private reprimands are printed to help attorneys avoid similar misconduct problems.

Lack of Competence; Lack of Diligence; Fees; Communication

Violations of SCR 20:1.1, 20:1.3, 20:1.5(b)(1), and 20:1.4(a)(2) and (3) and (b)

A woman sought legal representation regarding her disabled adult granddaughter. The lawyer agreed to represent “the family” at a scheduled hearing, and the woman and her husband signed a fee agreement. The agreement contained inaccurate and contradictory provisions, including regarding the identity of the “client” and that the woman’s initial payment was a “non-refundable minimum retainer.” (The fee was not a true retainer, and Wisconsin attorneys are not permitted to charge nonrefundable advance fees.)

After the hearing, the woman asked the lawyer for assistance in becoming her granddaughter’s guardian. He agreed to file a petition for change in guardianship but incorrectly believed that the woman’s daughter, and not the woman, must be the petitioner. He failed to advise the woman that if the daughter was the petitioner, the representation would not be covered by the woman’s legal-services agreement.

The lawyer violated SCR 20:1.5(b)(1) by failing to accurately and adequately explain the rate and basis of the fees to be charged with regard to the guardianship matter.

The lawyer violated SCR 20:1.1 by advising the woman that she could not seek appointment as guardian for her granddaughter and by failing to adequately research the service and statutory filing requirements for a change in guardianship.

The lawyer violated SCR 20:1.3 by failing to timely effectuate service of the petition for change of guardianship and by filing an untimely and incomplete required form.

The lawyer violated SCR 20:1.4(a)(2) and (3) and (b) by failing to advise the clients of his failure to effectuate service and to comply with the statute.

The lawyer had no prior discipline.

Criminal Act Reflecting Adversely on Fitness to Practice

Violation of SCR 20:8.4(b)

In February 2012, law enforcement officers were dispatched to a motor vehicle collision near a bar. An officer met with the driver of one vehicle involved in the collision. The officer then entered the bar and located the bartender, who identified the attorney as the driver of the other vehicle involved in the collision. The attorney failed field sobriety tests and was arrested. A chemical test indicated the attorney’s blood alcohol content to be 0.23 g/100 mL. The attorney was arrested and charged with second-offense operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration of 0.08 or more.

In September 2012, the attorney pleaded guilty to the OWI (second) charge, and the court sentenced the attorney to 45 days in jail with Huber privileges. The attorney’s sentence included driver’s license revocation for 16 months and ignition interlock for 16 months. The court also ordered the attorney to undergo an alcohol assessment and pay a fine.

By engaging in conduct leading to a misdemeanor conviction of OWI (second), the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Criminal Acts (OWI Third and Bail Jumping-Misdemeanor) That Reflect Adversely on Lawyer’s Fitness to Practice

Violation of SCR 20:8.4(b)

An attorney was convicted in January 2013 of misdemeanor third-offense operating while under the influence (OWI), following an April 2011 traffic stop. The attorney’s vehicle went through an intersection without stopping for a stop sign. The attorney’s blood alcohol level tested at 0.162. The attorney’s sentence included 90 days in jail with Huber privileges, driver’s license revocation for 24 months, and a fine.

In May 2011, the court ordered the attorney to maintain absolute sobriety and ordered the attorney referred to Wisconsin Community Services for the repeat-intoxicated-driver program. The attorney’s sobriety was monitored by random breathalyzer tests. The court advised the attorney that failure to comply with bail conditions might result in an additional charge of bail jumping.

In August 2011, the attorney appeared for court-ordered monitoring in the repeat-intoxicated-driver program and provided a breath sample, which measured an alcohol concentration of 0.076. The attorney was charged with misdemeanor bail jumping for intentionally failing to comply with the terms of the attorney’s bond. In September 2012, the attorney was convicted of bail jumping. The attorney’s sentence included 10 days in jail.

By engaging in conduct leading to criminal convictions of OWI (third) and bail jumping-misdemeanor, the attorney in each instance violated SCR 20:8.4(b).

The attorney had a prior private reprimand.

Lack of Diligence; Improper Fees and Fee Agreements; Failure to Promptly Deliver Funds Held in Trust

Violations of SCR 20:1.3, 20:1.5, and 20:1.15(d)(1)

An attorney concluded two matters by consenting to one private reprimand.

In the first matter, the attorney represented a woman in a divorce. The woman later hired the attorney to enforce her divorce settlement and to finish a pension qualified domestic relations order (QDRO).

The court ordered the ex-husband to pay $13,000 plus interest to the woman. After receiving a $20,000 check payable to his trust account, the attorney erred and disbursed to the client only $12,000 and did not immediately correct his error, doing so only after the passage of several months. When he was replaced by successor counsel more than two years after being hired for the task, the attorney had not completed work on the QDRO. During the representation, the attorney increased his hourly rate without notifying the client.

By releasing to the client an incorrect amount, the attorney violated SCR 20:1.15(d)(1). By failing to complete the QDRO, the attorney violated SCR 20:1.3. By failing to notify the client that he was raising his fees, the attorney violated SCR 20:1.5(b)(1).

In the second matter, the attorney represented a man in matters relating to a divorce and received an advance fee. By failing to present the client with a written fee agreement defining the scope of the representation and the manner in which the fee would be calculated, despite receiving fees well in excess of $1,000, the attorney violated SCR 20:1.5(b)(1) and (2). By failing to file a QDRO until three years after filing of the findings of fact, conclusions of law, and judgment of divorce, the attorney violated SCR 20:1.3.

The attorney had no prior discipline.

Criminal Act Reflecting Adversely on Fitness to Practice

Violation of SCR 20:8.4(b)

In October 2012, law enforcement officers responded to a report of a vehicle traveling south in the northbound lanes of an interstate highway, at approximately 70 miles per hour. An officer positioned himself and a short time later observed a vehicle traveling south in the northbound lanes of the highway. The officer then initiated a traffic stop and the driver, later identified as the attorney, eventually pulled over. The attorney failed field sobriety tests and was arrested. A chemical test indicated the attorney’s blood alcohol content to be 0.222 g/100 mL. The attorney was charged with second-offense operating a motor vehicle while intoxicated (OWI) and operating with a prohibited alcohol concentration of 0.08 or more.

In January 2013, pursuant to a no-contest plea, the attorney was convicted of OWI (second). The operating with a prohibited alcohol concentration of 0.08 or more (second) charge was dismissed on the prosecutor’s motion. The attorney was sentenced to two years’ probation (sentence withheld), 20 days in jail with Huber privileges subject to jail policies, driver’s license revocation for 16 months, and ignition interlock for 16 months. The attorney also was ordered to undergo an alcohol assessment and treatment and pay a fine.

The attorney timely reported the OWI (second) conviction to the OLR and the clerk of the supreme court, pursuant to SCR 21.15(5).

By engaging in conduct leading to a misdemeanor conviction of OWI (second), the attorney violated SCR 20:8.4(b), which states, “It is professional misconduct for a lawyer to … commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”

Lack of Competence; Failure to Supervise Support Staff

Violations of SCR 20:1.1 and 20:5.3(b)

While representing a woman in her divorce, an attorney failed to properly draft and file the findings of fact, conclusions of law, and judgment of divorce. The copies of the document provided to the court for conforming did not match the original document that became the court’s order. The attorney attributed the error to clerical mistakes by her assistant, whom the attorney failed to supervise. While seeking to correct the improper filing, the attorney made substantive changes to the document without obtaining opposing counsel’s express approval of the proposed amendments.

Although the attorney claimed that a copy of the document and a letter of explanation had been provided to opposing counsel, opposing counsel never received them. The court signed and entered the amended judgment, which resulted in a significant increase in the amount of child support the husband was paying. On opposing counsel’s motion, the court vacated the judgment and stated the attorney should have pursued a properly noticed motion to seek amendment of the court’s judgment.

The attorney violated SCR 20:1.1 by failing to provide competent representation and SCR 20:5.3(b) by failing to supervise her support staff.

The attorney had no prior discipline.

Conduct Involving Misrepresentation; Conflict of Interest; Failure to Cooperate During an Investigation

Violations of SCR 20:1.7(a)(2), 20:8.4(c) and (h), and 22.03(6)

A lawyer prepared a trust that made the client’s son beneficiary of the family farm and required the son to pay the client’s daughter an amount equal to the farm’s fair market value. After execution, minor revisions were required, and they were completed five months later. The lawyer then removed the signature page from the trust, appended it to the revised trust, and represented the trust as having been executed on the earlier date. The lawyer violated SCR 20:8.4(c), which states, “[i]t is professional misconduct for a lawyer to: … (c) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.”

After the client died, the daughter sought an amount from the son equal to the farm’s fair market value. The lawyer asserted the client intended to give her one-half the fair market value. Despite his drafting error, the lawyer represented the son and the trust during negotiations and initially after suit was filed, violating SCR 20:1.7(a)(2), which states, “[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: … (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”

During the investigation, concerns arose about the date of execution of the trust. The lawyer responded four times, but withheld until the fourth time the information that he had removed the signature page and appended it to the revised trust. By withholding this information from the OLR, the lawyer failed to cooperate, in violation of SCR 20:8.4(h) and SCR 22.03(6).

The lawyer had a prior private reprimand, in 1979.