Revisionist History And Impossible Tasks

The Wisconsin Supreme Court has denied a reinstatement petition of a former attorney who consented to license revocation in 2010.

Then his problems continued

On May 7, 2012, the State charged Attorney Mularski with two felony counts of theft, alleging that between 2006 and 2009 Attorney Mularski had embezzled hundreds of thousands of dollars from the trust account of his former law firm, Eisenberg, Riley & Zimmerman. On October 23, 2012, Attorney Mularski pled guilty to one felony count of theft and was sentenced to five years of probation with one year at the Milwaukee County House of Corrections as a condition of that probation. He was ordered to have no contact with his former firm. The sentencing court ordered Attorney Mularski to pay, inter alia, restitution to the firm’s trust account in the amount of $338,019.96.

He had paid approximately $228,000 by his sentencing.

An adverse witness at the reinstatement hearing

Attorney Mularski’s former spouse also appeared and testified. As relevant here, she reported that Attorney Mularski had claimed their children as exemptions on his 2016 federal tax return, despite their marital settlement agreement to the contrary.

Attorney Mularski described the tax issue as an unintentional mistake and emphasized that he had amended that tax return. Attorney Mularski disclosed that he and his former spouse are currently involved in a contentious custody and placement proceeding involving their children.

 The court

The question before this court is whether we should reinstate Attorney Mularski’s license to practice law. Attorney Mularski reasons that the only way he will ever satisfy his many financial obligations will be if he is permitted to practice law again. He asks the court to reinstate him so he can make headway against his restitution obligations. He suggests he could be reinstated with various conditions and restrictions imposed on his license.

 Among the issues

The OLR agrees, noting that during the OLR’s investigation and at the hearing, Attorney Mularski was unable to identify the amounts he owed to his former clients, or provide documentation of payment.

Attorney Mularski acknowledges that he has not provided the required accounting, much less satisfied his restitution obligations. He contends this should not preclude his reinstatement because, he says, creating the required accounting is an impossible task. He says that he has “provided all documentation he has available to show what has been paid, and what may be due. No additional records are available, and for the referee to find that [Mularski] has failed to meet his burden is clearly erroneous.”

We disagree. The record confirms that this is a challenging problem to unravel, but also demonstrates that there is more Attorney Mularski could do to respond to this court’s order and the requirement for reinstatement.

Creating an accounting that will identify the amount of restitution owed to Attorney Mularski’s former clients is challenging because there are separate, sometimes overlapping, orders and judgments. As noted, in the criminal proceeding Attorney Mularski was ordered to pay $338,019.96 in restitution to the Eisenberg firm. The allegations in the underlying OLR disciplinary complaint overlap with those in the criminal complaint, but also contained separate claims relating to clients Attorney Mularski represented before he joined the Eisenberg firm.

 As to his claim re restitution

…this is revisionist history. The difficulties regarding restitution long predate the criminal proceeding and ensuing criminal restitution and no-contact orders. Before we accepted Attorney Mularski’s petition for consensual license revocation in 2010, we were concerned about the clients who were owed restitution, and issued detailed orders seeking to resolve restitution as to the clients implicated in that proceeding…

Despite his first-hand knowledge that this court was keenly interested in ascertaining appropriate restitution to compensate clients injured by Attorney Mularski’s misconduct, Attorney Mularski provided this court with no documentation, much less an accounting, even with respect to the clients identified in earlier court orders or those Attorney Mularski represented before he joined the Eisenberg firm. For example, both parties made repeated reference to a “spread-sheet” that apparently reflects Attorney Mularski’s best effort to establish an accounting, but this document was not produced in this proceeding. Without it neither the referee nor this court has any way of independently determining whether the accounting challenge is indeed an impossible task.

 (Mike Frisch)