                                                             2014 WI 118

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2013AP2230-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Mark S. Tishberg, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Mark S. Tishberg,
                                  Respondent.



                           DISCIPLINARY PROCEEDINGS AGAINST TISHBERG

OPINION FILED:          October 28, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                          2014 WI 118
                                                                   NOTICE
                                                     This opinion is subject to further
                                                     editing and modification.   The final
                                                     version will appear in the bound
                                                     volume of the official reports.
No.    2013AP2230-D


STATE OF WISCONSIN                              :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Mark S. Tishberg, Attorney at Law:

Office of Lawyer Regulation,                                            FILED
           Complainant,
                                                                   OCT 28, 2014
      v.
                                                                      Diane M. Fremgen
                                                                   Clerk of Supreme Court
Mark S. Tishberg,

           Respondent.




      ATTORNEY      disciplinary        proceeding.         Attorney          publicly

reprimanded.



      ¶1   PER    CURIAM.      We   review     the     recommendation          of    the

referee that Attorney Mark S. Tishberg be publicly reprimanded

for   professional       misconduct.      That        misconduct        consists       of

failing    to    abide    by   a    client's    decisions          concerning        the

objectives of representation; failing to explain a matter to a

client to the extent reasonably necessary to permit the client

to make informed decisions regarding the representation; failing
to act with reasonable diligence and promptness in representing
                                                                 No.       2013AP2230-D



a client; failing to keep a client reasonably informed about the

status of a matter; failing to promptly comply with reasonable

requests   by   a   client    for    information;        failing      to     reduce   a

contingent fee agreement to writing; and engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation.

    ¶2     In    addition     to    a     public   reprimand,          the    referee

recommended     that   Attorney      Tishberg      pay    the    costs       of   this

proceeding.     As of July 7, 2014, the Office of Lawyer Regulation

(OLR) reported costs of $2,555.89.

    ¶3     No appeal has been filed, so we review this matter

pursuant to Supreme Court Rule (SCR) 22.17(2).1                       We adopt the

referee's findings of fact and conclusions of law and agree that

a public reprimand is the appropriate discipline for Attorney

Tishberg's misconduct in this matter.              We further conclude that

Attorney   Tishberg    should      pay    the   costs    of    this    disciplinary

proceeding.

    ¶4     Attorney Tishberg was admitted to the practice of law

in Wisconsin in 1990.        He has no disciplinary history.
    ¶5     On October 7, 2013, the OLR filed a complaint against

Attorney   Tishberg     alleging         five   counts    of    misconduct        with

    1
        SCR 22.17(2) states:

         If no appeal is filed timely, the supreme court
    shall review the referee's report; adopt, reject or
    modify the referee's findings and conclusions or
    remand the matter to the referee for additional
    findings;   and   determine  and   impose  appropriate
    discipline.   The court, on its own motion, may order
    the parties to file briefs in the matter.


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respect to a personal injury matter he handled for a former

client.     Richard C. Ninneman was appointed referee.

      ¶6     By      stipulation    filed       November   7,    2013,     Attorney

Tishberg admitted the allegations of misconduct contained in the

complaint.        Only the appropriate level of discipline for the

violations remained in dispute.

      ¶7     Attorney Tishberg filed a written statement in which

he conceded his misconduct but argued that a reprimand was the

appropriate sanction.         A colleague of Attorney Tishberg filed a

letter attesting to Attorney Tishberg's good character and also

requesting the issuance of a reprimand.                  The OLR filed a brief

urging the imposition of a 90-day license suspension.

      ¶8     On June 2, 2014, the referee conducted an evidentiary

hearing.

      ¶9     On June 17, 2014, the referee filed his report.                  Based

on the parties' stipulation and filings, the referee found the

following facts.

      ¶10    Attorney Tishberg is a sole practitioner in Milwaukee,
who   shares      office   space    with       several   other   attorneys.        His

practice is generally concentrated on criminal and family law,

with an occasional personal injury matter.                      In such personal

injury      cases,    Attorney     Tishberg      customarily     enters     into     a

written fee agreement with the client in order to set forth his

contingent fee arrangement. He frequently is involved in pro

bono representation of clients in the sense that he will take on

matters without a retainer and knowing that the likelihood of


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being compensated at a normal hourly rate or otherwise is fairly

unlikely.

       ¶11   The OLR's complaint arises out of Attorney Tishberg's

representation of two individuals, J.D. and his spouse, L.D., in

a personal injury matter.                J.D. and L.D. were long-time personal

friends of Attorney Tishberg's wife's family.                            In January 2001,

J.D.   was   injured        while    a    passenger      on    a    commercial      airline

flight.        J.D.   hired         Attorney        Tishberg       to    file   a    lawsuit

regarding the injury.               Although Attorney Tishberg customarily

took on personal injury cases on a contingency basis, there is

no   evidence    of     a    written       fee      agreement       regarding       Attorney

Tishberg's representation of J.D.

       ¶12   In January 2004, Attorney Tishberg filed a complaint

in   circuit    court       against      the       airline    and       its   underwriters,

seeking damages on behalf of J.D. and L.D.                              However, Attorney

Tishberg failed to effect timely service on the defendants as

required by statute, and the circuit court dismissed the action

with prejudice in October 2004.
       ¶13   Attorney Tishberg did not advise J.D. or L.D. that

their lawsuit had been dismissed.                    According to the stipulation

between Attorney Tishberg and the OLR, between October 2004 and

March 2010, Attorney Tishberg represented to J.D. that he was

negotiating a settlement of the lawsuit.                       In late 2009 and early

2010, Attorney Tishberg repeatedly represented to J.D. that the

case could settle for $12,000.                 Attorney Tishberg planned to use

fees he anticipating receiving from another client matter to


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fund the $12,000 payment to J.D. and to thereby prevent J.D. and

L.D. from finding out that their lawsuit had been dismissed.

    ¶14    In June 2010, J.D., having not received any funds from

Attorney Tishberg, filed a grievance with the OLR.                    It was not

until after J.D. filed this grievance that Attorney Tishberg

advised J.D. and L.D. that their personal injury lawsuit had

been dismissed.

    ¶15    J.D. and L.D. engaged another lawyer to pursue a claim

against Attorney Tishberg.         Attorney Tishberg settled the claim

by executing a promissory note to J.D. and L.D. for a stated

amount plus interest.       In December 2010, using monies from his

personal   retirement    account,    Attorney    Tishberg   paid       J.D.   and

L.D. $13,270.85, which included the fees of J.D.'s and L.D.'s

successor counsel.

    ¶16    Attorney Tishberg did not charge or collect any fees

from J.D. and L.D., nor did he recover any of his disbursements

with respect to their previous personal injury action.

    ¶17    Attorney     Tishberg    and   the   OLR   stipulated,       and   the
referee agreed, that Attorney Tishberg's actions described above

constituted the following professional misconduct:

          COUNT ONE:     By failing to advise J.D. and L.D. that he

           had failed to timely serve the personal injury lawsuit

           in question, and by failing to advise J.D. and L.D.

           that the defendants had moved for, and the circuit

           court had granted, a dismissal of their lawsuit with

           prejudice,      Attorney       Tishberg       violated         former
           SCR 20:1.2(a)     (failing      to    abide    by      a     client's
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                                                         No.    2013AP2230-D



    decisions concerning the objectives of representation)

    and SCR 20:1.4(b) (failing to explain a matter to the

    client to the extent reasonably necessary to permit

    the client to make           informed decisions regarding the

    representation).

   COUNT TWO:     By failing to take the steps necessary to

    timely serve the personal injury lawsuit in question,

    Attorney Tishberg violated SCR 20:1.3 (failing to act

    with     reasonable       diligence        and       promptness      in

    representing a client).

   COUNT THREE:        By failing between 2004 and September

    2010 to promptly respond to J.D.'s reasonable requests

    for information and to provide accurate information to

    J.D. about the status of his case, Attorney Tishberg

    violated SCR 20:1.4(a)(3) and (4) (failing to keep the

    client   reasonably      informed      about   the   status    of   the

    matter and to promptly comply with reasonable requests

    by the client for information).
   COUNT FOUR:      By failing to enter into a written fee

    agreement    with     J.D.       and   L.D.,     Attorney     Tishberg

    violated SCR 20:1.5(c) (failing to reduce a contingent

    fee agreement to writing).

   COUNT FIVE:      By engaging in a course of conduct to

    hide from J.D. that his personal injury lawsuit had

    been dismissed in October 2004, and to deceive J.D.

    into believing that J.D. might obtain or had obtained
    a   settlement      of    the     lawsuit,       Attorney     Tishberg
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                                                                             No.    2013AP2230-D



             violated SCR 20:8.4(c) (engaging in conduct involving

             dishonesty, fraud, deceit, or misrepresentation).

      ¶18    Regarding the question of the appropriate discipline,

the referee noted a variety of mitigating factors:                                 (1) Attorney

Tishberg has practiced for 24 years without any disciplinary

problems; (2) Attorney Tishberg admits and is truly remorseful

for his mistakes; (3) Attorney Tishberg possesses many positive

character     traits        and   performs            extensive         pro        bono     work;

(4) Attorney        Tishberg      withdrew             money      from        his     personal

retirement account to settle the claim brought by J.D. and L.D.,

who   at    the   time    were    represented              by   separate       counsel;       and

(5) Attorney Tishberg did not charge or collect any fees from

J.D. and L.D., nor did he recover any of his disbursements with

respect to their personal injury action.

      ¶19    The referee wrote that in light of such evidence, a

90-day     suspension     would      be    "disproportionately                harsh."         The

referee instead recommended the issuance of a public reprimand.

      ¶20    The matter is now before this court to review the
referee's report and recommendation.                       No appeal has been filed.

      ¶21    This    court    concludes             that    the   record       supports       the

referee's findings of fact and conclusions of law.                                    They are

unchallenged and this court adopts them.

      ¶22    With    respect      to      the       discipline     to    be        imposed,   we

determine     the     appropriate          level           of   discipline          given     the

particular    facts      of   each     case,         independent        of    the    referee's

recommendation, but benefiting from it.                         See In re Disciplinary
Proceedings       Against     Widule,       2003 WI 34,           ¶44,       261 Wis. 2d 45,
                                                7
                                                                                      No.     2013AP2230-D



660 N.W.2d 686.             We       agree     with        the        referee          that       Attorney

Tishberg's     misconduct            warrants         a    public         reprimand.              Attorney

Tishberg's attempts to cover up the effects of his failure to

timely    serve      J.D.'s       and    L.D.'s           personal         injury       lawsuit         were

undeniably foolish.              However, there is no evidence that Attorney

Tishberg attempted or expected to obtain any personal gain as a

result of his conduct.                  In addition, because Attorney Tishberg

used his own retirement funds to pay J.D. and L.D. the apparent

value    of   their       personal          injury        claim       plus       their        subsequent

attorney      fees,       there       was    no       monetary            loss    to        the     client.

Attorney Tishberg cooperated completely in the investigation of

this matter, has expressed genuine remorse for his misconduct,

and     has   no     previous         history         of    misconduct.                     Under       these

circumstances,        we    are        satisfied          that        a    public       reprimand          of

Attorney      Tishberg          is     sufficient           to    impress             upon        him    the

seriousness of his professional misconduct and to protect the

public from similar misconduct in the future.

      ¶23     The referee further recommended that Attorney Tishberg
be required to pay all costs of the disciplinary proceeding,

which total $2,555.89 as of July 7, 2014.                                 Attorney Tishberg has

not   objected       to    or        appealed     from          the       referee's          report      and

recommendation.           Under SCR 22.24(1), this court has discretion

to assess all or a portion of the costs of the disciplinary

proceeding      in    which          misconduct           has    been       found           against      the

respondent.          There is no claim in the instant case that the

costs    requested         by    the     OLR      are       excessive            or     unreasonable.


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                                                        No.        2013AP2230-D



Accordingly, we order Attorney Tishberg to pay the costs of this

proceeding, as recommended by the referee.

    ¶24   No restitution was sought and none is ordered in this

proceeding.

    ¶25   IT   IS   ORDERED   that   Mark   S.   Tishberg     is     publicly

reprimanded for his professional misconduct.

    ¶26   IT IS FURTHER ORDERED that within 60 days of the date

of this order, Mark S. Tishberg shall pay to the Office of

Lawyer Regulation the costs of this proceeding.

    ¶27   IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this decision.




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    No.   2013AP2230-D




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