                                                              2015 WI 37

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP2300-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Howard B. Mitz, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Howard B. Mitz,
                                  Respondent.

                             DISCIPLINARY PROCEEDINGS AGAINST MITZ

OPINION FILED:          April 3, 3015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                                 2015 WI 37
                                                                       NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.    2013AP2300-D


STATE OF WISCONSIN                                   :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Howard B. Mitz, Attorney at Law:

Office of Lawyer Regulation,                                                FILED
              Complainant,
                                                                        APR 3, 2015
      v.
                                                                          Diane M. Fremgen
                                                                       Clerk of Supreme Court
Howard B. Mitz,

              Respondent.




      ATTORNEY         disciplinary         proceeding.           Attorney         publicly

reprimanded.



      ¶1      PER     CURIAM.       We     review     the      report       of      Referee

Jonathan V.         Goodman,      recommending       that      the     court       publicly

reprimand Attorney Howard B. Mitz for professional misconduct

and   order    him     to   pay    the     full   costs      of    this     disciplinary

proceeding, which total $6,706.79 as of January 2, 2015.

      ¶2      No appeal has been filed from the referee's report and

recommendation,        so   we    review    the     matter     pursuant       to    Supreme
                                                                No.     2013AP2300-D



Court Rule (SCR)          22.17(2).1       After considering the referee's

report and the record in this matter, we agree that Attorney

Mitz engaged in the acts of professional misconduct alleged in

the Office of Lawyer Regulation's (OLR) complaint.                     We further

agree with the referee that a public reprimand is sufficient

discipline.        We require Attorney Mitz to pay the full costs of

this proceeding.

    ¶3       Attorney Mitz was admitted to the practice of law in

Wisconsin     on    August    28,      1973.       He   practices     in   Mequon,

Wisconsin.    He has no history of professional misconduct.

    ¶4       The misconduct giving rise to this proceeding stems

from Attorney Mitz's representation of his first cousin, M.F.

In December 2003, M.F. was injured in a car accident and unable

to work.      In June 2004, Attorney Mitz filed a personal injury

action on M.F.'s behalf against J.J.

    ¶5       In    July    2006,    M.F.       sought   financial     advice   from

Attorney Mitz.        Attorney Mitz arranged for two loans totaling

$2,500 each from Attorney Mitz's father and uncle, respectively.
The loan proceeds were put into Attorney Mitz's trust account.

M.F. also applied for a loan from PS Finance for the amount of

    1
        SCR 22.17(2) provides:

         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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                                                                              No.     2013AP2300-D



$8,000.      Attorney Mitz helped M.F. with those loan documents and

notarized      a     number       of        documents,       including         an      "Attorney

Acknowledgement           of   Explanation           of     Terms        to   Plaintiff,           of

Revocable Lien and Assignment to Pre-Settlement Finance, LLC."

    ¶6       In     May    2007,       a    settlement      was     reached         with    J.J.'s

insurer, Badger Mutual Insurance, in the amount of $100,000.

Attorney Mitz promptly used a portion of the settlement proceeds

to repay M.F.'s loans from Attorney Mitz's father and uncle.

Attorney Mitz failed to notify PS Finance of the settlement.

    ¶7       Between       May     2007      and     November       2008,      Attorney        Mitz

distributed the remainder of the settlement proceeds, without

any payment to PS Finance.

    ¶8       In     February       2009,       PS    Finance        learned         that    M.F.'s

personal      injury       case    had        settled.            Through      a     series        of

conversations and emails made part of the underlying record,

Attorney Mitz claimed that he hadn't received the settlement

proceeds and that he was still trying to put numbers to the

proper disbursements from the settlement, among various other
excuses.      In October 2011, Attorney Mitz informed PS Finance

that settlement proceeds were in his trust account but that no

one had yet been paid.                     Attorney Mitz claimed he would fax a

letter to PS Finance confirming that the settlement funds were

still   in    his    trust     account.             PS    Finance    never      received       the

promised letter.

    ¶9       Eventually,          in       February       2012,     PS    Finance          filed    a

grievance with the OLR.                    In response to the OLR's inquiries,
Attorney Mitz stated that he "first became aware that the loan
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                                                                            No.        2013AP2300-D



had    in       fact    been    closed     and    the       existence    of      PS     Finance's

claimed lien in 2008, after the settlement with Badger Mutual."

In August 2013, Attorney Mitz sent PS Finance a check in the

amount of $11,637, the full balance due on the loan.

       ¶10       In     October        2013,     the     OLR     filed      a        disciplinary

complaint         against       Attorney       Mitz,        alleging     three        counts      of

professional misconduct.                  Attorney Mitz first sought dismissal

of    the       OLR    complaint;       the    referee       denied    that      motion      in   a

written decision.                Thereafter, Attorney Mitz filed an answer

and,       in    October       2014,    the    referee       conducted      an       evidentiary

hearing, ultimately concluding that Attorney Mitz committed the

misconduct, substantially as alleged in the OLR's complaint.

       ¶11       The referee concluded that, by not timely notifying

PS Finance of the settlement and delivering to PS Finance the

funds       to    satisfy       PS   Finance's         lien,     Attorney       Mitz     violated

SCR 20:1.15(d)(l)2 (Count One).

       ¶12       The referee concluded that, by making false statements

to     PS       Finance    representatives             on    a    number        of    occasions,


       2
            SCR 20:1.15(d)(1) provides:

            Upon receiving funds or other property in which a
       client has an interest, or in which the lawyer has
       received notice that a 3rd party has an interest
       identified by a lien, court order, judgment, or
       contract, the lawyer shall promptly notify the client
       or 3rd party in writing.     Except as stated in this
       rule or otherwise permitted by law or by agreement
       with the client, the lawyer shall promptly deliver to
       the client or 3rd party any funds or other property
       that the client or 3rd party is entitled to receive.


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                                                                 No.       2013AP2300-D



including, but not limited to, that settlement proceeds were

still in his trust account and that he was attempting to analyze

the settlement disbursements, when there is no question that

Attorney Mitz knew that settlement proceeds had already been

disbursed      from     his    trust     account,     Attorney    Mitz       violated

SCR 20:4.1(a)(1)3 and SCR 20:8.4(c)4 (Count Two).

     ¶13      The       referee          concluded      that,         by       making

misrepresentations in his March 29, 2012 letter to the OLR to

the effect that he was unaware that M.F. had taken an $8,000

loan from PS Finance or that PS Finance had a lien against

M.F.'s   personal       injury    claim     until    sometime    in    2008,    after

Attorney      Mitz    had    disbursed    the   $100,000   settlement        proceeds

from Badger Mutual Insurance, when in fact Attorney Mitz was

aware    of     the     PS     Finance     loan,     Attorney     Mitz       violated

SCR 20:8.4(c) (Count Three).

     ¶14      The OLR sought a 60-day suspension and imposition of

costs.      The referee acknowledged the seriousness of Attorney

Mitz's professional misconduct, but ultimately recommended that
the court impose a public reprimand.                 The referee noted that in

its brief addressing sanctions, the OLR cited a number of cases

in which attorneys were suspended for similar misconduct.                          The

     3
       SCR 20:4.1(a)(l)  provides   that,   in   the  course of
representing a client, a lawyer shall not knowingly "make a
false statement of a material fact or law to a 3rd person."
     4
       SCR 20:8.4(c) provides that it is professional misconduct
for a lawyer to "engage in conduct involving dishonesty, fraud,
deceit or misrepresentation."


                                           5
                                                                               No.    2013AP2300-D



referee      observed,       however,         that      the    cases    cited        by       the    OLR

involved      attorneys       who       had     previously          committed        misconduct.

See, e.g., In re Disciplinary Proceedings Against Gorokhovsky,

2013 WI 100, 351 Wis. 2d 408, 840 N.W.2d 126.                              Here, the referee

determined      that,       in     view       of       Attorney     Mitz's       lack         of     any

disciplinary      history,         the     concept           of    progressive        discipline

renders a public reprimand more appropriate.

       ¶15    We will affirm a 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 given the particular facts of each case,

independent      of   the        referee's         recommendation,           but     benefitting

from    it.      In     re       Disciplinary            Proceedings         Against          Widule,

2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶16    There is no showing that any of the referee's findings

of fact are erroneous.                  Accordingly, we adopt them.                           We also
agree with the referee's conclusions of law that Attorney Mitz

violated the supreme court rules set forth above.                                         While the

misconduct      at    issue        is     serious,           the   record       reflects            that

Attorney      Mitz    has     no    prior          discipline,         did    not     personally

benefit from the misconduct, and cooperated with the OLR.                                             We

therefore      accept    the       referee's            recommendation          for       a    public

reprimand.       Finally, we agree with the referee that Attorney

Mitz should be required to pay the full costs of the proceeding,


                                                   6
                                                   No.    2013AP2300-D



which are $6,706.79 as of January 2, 2015.     We accept the OLR's

statement that restitution is not warranted in this matter.

    ¶17   IT IS ORDERED that Attorney Howard B. Mitz is publicly

reprimanded for his professional misconduct.

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

of this order, Howard B. Mitz shall pay to the Office of Lawyer

Regulation the costs of this proceeding, $6,706.79.

    ¶19   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 order.




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    No.   2013AP2300-D




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