¶3 Attorney Nussberger was admitted to practice law in Wisconsin in 1983 and practices in Ladysmith. On March 29, 2003, Attorney Nussberger received a public reprimand for misconduct that violated SCR 20:8.4(c). See Public Reprimand of Terry L. Nussberger, 2003-6. On August 8, 2006, Attorney Nussberger's license to practice law was suspended for 60 days, effective September 11, 2006, for counseling a client to engage in conduct that he knew was criminal or fraudulent, contrary to SCR 20:1.2(d). See In re Disciplinary Proceedings Against Terry L. Nussberger, 2006 WI 111, ¶25, 296 Wis. 2d 47, 719 N.W.2d 501. His license was reinstated on November 10, 2006.

¶5 The following facts are stipulated. V.K. died on August 21, 2001, leaving a will dividing her estate among her beneficiaries. Attorney Nussberger was retained to probate her estate and filed a formal probate petition on November 29, 2001. On January 14, 2002, R.G. was named personal representative.

¶6 R.G. gave to Attorney Nussberger V.K.'s U.S. savings bonds with a total face value of $77,825 and accrued interest. The remaining estate assets consisted of certificates of deposit, personal property, bank accounts, and a home. The value of these remaining assets totaled $278,000.

¶7 On January 17, 2002, Attorney Nussberger wrote to R.G. indicating the value of the savings bonds had not yet been determined but that Attorney Nussberger would take care of the valuation promptly. To file an estate inventory and determine whether the estate needed to file tax returns, a determination of the bonds' date of death value was necessary. If the total value of the estate exceeded $675,000, the estate would have been required to file state and federal estate tax returns or file within nine months of the date of death an extension request with an estimated tax payment. The filing deadline was May 21, 2002.

¶8 R.G. redeemed the U.S. savings bonds in two groups. He redeemed the first group on September 23, 2002, for a total of $369,557.84. He redeemed the second group on October 15, 2002, for a total of $90,791.12. Because the bonds' redemption and other estate assets totaled $738,348.96, an estate tax return was required.

¶9 Attorney Nussberger failed to determine whether the estate's value exceeded $675,000 and did not file estate tax returns in 2002. Also, an estate inventory was required to have been filed within six months of the personal representative's appointment. Attorney Nussberger did not file an estate inventory by the July 14, 2002, deadline.

¶10 On June 6, 2003, Attorney Nussberger filed an estate inventory inaccurately listing the total estate value as $647,928. The inventory omitted the bonds redeemed in October 2002 and erroneously valued the other bonds at their redemption value, rather than their date of death value. In June or July 2003 Attorney Nussberger realized the bonds redeemed in October 2002 had been omitted from the inventory. He stipulates he should have also realized at this time that an estate tax return was required. Although Attorney Nussberger charged the estate for one hour of his time to review the bonds' values, he failed to determine their date of death values.

¶11 In September 2003 V.K.'s house was sold. Upon the completion of the sale all estate assets had been liquidated. Therefore, the estate could have been closed after the filing of a final account and final tax returns. Other than filing a fiduciary income tax return prepared by the estate's accountant, nothing happened to close the estate for the next year.

¶12 On September 27, 2004, over a year after Attorney Nussberger determined he had inadvertently omitted the bonds redeemed on October 2002 from the estate inventory, he filed an amended inventory listing a total estate value of $738,719, with the bonds still listed at their redemption value rather than their date of death value. In January 2005 the estate's accountant provided Attorney Nussberger with the bonds' date of death value.

¶13 On January 13, 2005, Attorney Nussberger filed a second amended inventory listing the bonds' date of death value and showing a total estate value of $726,222.50. Also in January 2005 Attorney Nussberger filed an untimely Wisconsin estate tax return, resulting in a $500 late penalty and $8,946.79 in interest. In April 2005 a federal estate tax return was filed and no tax was owed.

¶14 On January 20, 2005, Attorney Nussberger filed a petition for an extension to close the estate, stating that he was waiting for a Wisconsin Department of Revenue certificate. On January 28, 2005, three and one-half years after the date of death, Attorney Nussberger wrote to the estate's heirs, explaining that an accurate valuation of the estate had been accomplished. When R.G. questioned Attorney Nussberger about the interest and penalty charges totaling $9,446.79 on the Wisconsin estate tax return, Attorney Nussberger responded that "no one had any idea that the assets would surpass the [estate tax] limit and that an Estate Tax return would even have to be filed."

¶15 On November 28, 2005, Attorney Nussberger filed a final account and, on January 6, 2006, filed an amended final account. At the February 2006 hearing on the final account, R.G. alleged Attorney Nussberger should be held responsible for the $500 penalty and $8,946.79 interest for the late estate tax return. The court deferred action on the final account and the estate remained open. A new attorney was hired to complete probate.

¶20 The stipulation demonstrates that Attorney Nussberger's misconduct harmed the estate by the belated filing of the estate tax return that resulted in $9,446.79 in penalties and interest. Because of our concern that the stipulation does not address restitution, we ordered the parties to explain why their stipulation does not provide for restitution of the tax penalties and interest the estate incurred due to Attorney Nussberger's misconduct. The OLR responded that its policy, formulated in 2007, is to seek restitution only under the following circumstances:

¶21 The OLR states that although the V.K. estate incurred consequential damages in penalties and interest, and the amount is reasonably ascertainable, the funds were never under Attorney Nussberger's direct control. The OLR says that to be consistent with its 2007 policy, it decided not to pursue restitution. The OLR notes that its policy regarding restitution does not bind this court and, in a 1997 case involving similar misconduct, the court ordered restitution. See In re Disciplinary Proceedings Against Langer, 213 Wis. 2d 125, 569 N.W.2d 465 (1997). Attorney Nussberger filed a short response stating restitution should not be ordered based on the OLR's policy.

¶22 It is this court's responsibility to determine the appropriate level of discipline. See SCR 21.16; see also In re Disciplinary Proceedings Against Steinberg, 2007 WI 113, ¶20, 304 Wis. 2d 577, 735 N.W.2d 527. This court considers the seriousness of the misconduct, the need to protect the public, the courts, and the legal system from repetition of misconduct, the need to impress upon the attorney the seriousness of the misconduct, and the need to deter other attorneys from engaging in similar misconduct. See id. Discipline may include restitution "to the person whose money or property was misappropriated or misapplied in the amount or value of such money or property as found in the disciplinary proceedings." See SCR 21.16(1m)(em) and (2m).

¶23 We note restitution has been imposed under circumstances similar to those presented here. See In re Disciplinary Proceedings Against Losby, 2008 WI 8, 306 Wis. 2d 303, 743 N.W.2d 819 (restitution of interest and penalties incurred by estate due to attorney misconduct imposed as a condition of reinstatement); In re Disciplinary Proceedings Against Seehafer, 108 Wis. 2d 578, 322 N.W.2d 888 (1982) (stipulation included the imposition of restitution of interest and penalties incurred by estate due to attorney misconduct). Nonetheless, while this court frequently imposes restitution, historically the purpose of lawyer discipline is not to make whole those harmed by attorney misconduct. See In re Disciplinary Proceedings Against Harman, 137 Wis. 2d 148, 150, 403 N.W.2d 459 (1987).

¶24 We are satisfied that a public reprimand of Attorney Nussberger will achieve the objectives of lawyer discipline. We therefore adopt the stipulation that Attorney Nussberger has committed the two counts of misconduct charged in the OLR complaint. We impose the stipulated discipline and do not impose costs or restitution. We place considerable weight on Attorney Nussberger's admission of his misconduct, his full disclosure, and his cooperative attitude.

¶25 We are mindful that Attorney Nussberger has failed to compensate the estate for more than $9,000 in penalties and interest incurred as a result of his misconduct. The court will review with the OLR the broader issue of its policies with respect to seeking restitution. In approving the stipulation, we note that Attorney Nussberger's stipulation to his lack of competence and diligence in handling the estate and his agreement to a public reprimand does not detract from the grievant's right to any civil remedy against Attorney Nussberger for harm suffered as a result of his misconduct.

¶26 We adopt the stipulated facts and recommended discipline. We caution Attorney Nussberger of the seriousness of his misconduct. We remind Attorney Nussberger that the court may impose progressively severe sanctions when an attorney engages in a pattern of misconduct. See Nussberger, 296 Wis. 2d 47, ¶27. A pattern of repetitive misconduct is unacceptable. See id. We accept the stipulation with the expectation that Attorney Nussberger will not commit conduct subjecting him to future discipline.