Public Reprimand of Mark S. Tishberg
2021-OLR 8
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Attorney Mark S. Tishberg of Mequon engaged
in misconduct in three matters.
On or about July 9, 2018, a client hired
Tishberg to represent him in a divorce
matter. On or around August 16, 2019, the
client also hired Tishberg to represent him
in an unrelated civil matter. During the
course of Tishberg’s representation of the
client, Tishberg also agreed to assist the
client in other legal matters, including an
eviction matter, and the removal of Wisconsin
Circuit Court Access records for a previously
dismissed criminal matter and restraining
order against the client.
The client paid Tishberg a total of $3,150
for Tishberg’s representation and work on all
matters. On July 20, 2018, the client paid
Tishberg $3,000 as an advanced fee for the
divorce matter, and on or around August 15,
2019, an additional $150 as a “bill payment.”
Subsequent to the filing of the client’s
grievance matter with the Office of Lawyer
Regulation (“OLR”), Tishberg was unable to
locate his signed fee agreement with the
client in the divorce matter. Consequently,
on or around April 10, 2020, Tishberg sent
the client a second copy of the fee
agreement. The client did not sign and
return the second copy. Tishberg states he
forgot to provide the client with a written
agreement for his representation in the civil
matter. Tishberg did not prepare written fee
agreements for his work on any of the other
miscellaneous matters because of minimal cost
and time spent on the matters.
Regarding the divorce matter, on December 23,
2019, the client and his wife signed a
Martial Settlement Agreement. On December
23, 2019, the court granted the divorce and
ordered Tishberg to file Findings of Fact,
Conclusions of Law, and Judgment within
thirty days. On February 20, 2020, the court
wrote to Tishberg to request the Findings of
Fact, Conclusions of Law, and Judgment.
Tishberg submitted the documents on April 13,
2020, after the court had issued a show cause
order on March 27, 2020. Tishberg stated
that prior to receiving the order to show
cause, he believed he had filed the requested
documents.
On April 13, 2020, Tishberg sent to the
attorney for the client’s now ex-wife a check
from Kemper Insurance Company payable to the
client and his ex-wife in the amount of $346.
The check issued by Kemper Insurance resulted
from the client’s cancellation of the
insurance policy on a rental property sold by
the client on September 12, 2019. Tishberg
asked the attorney for the client’s ex-wife
to have her sign the check and return it to
Tishberg. Tishberg took no further steps to
follow up on the check.
On April 20, 2020, the court entered judgment
of divorce. As part of the marital
settlement agreement, the client’s ex-wife
received a vehicle, which she agreed to
“refinance in her own name within Ninety (90)
days from the date of judgment.” On May 29,
2020, the client’s ex-wife filed an Order to
Show Cause for Finding of Contempt because of
the client’s failure to sign over the title
to the vehicle to her, along with the
client’s failure to pay a $15,000 Marital
Equalization Payment, which had been due by
March 22, 2020.
Neither spouse could locate the vehicle
title, so Tishberg advised the client to
obtain a duplicate title to the vehicle from
the DMV. Tishberg also researched the issue
himself and discovered that Landmark Credit
Union needed to release the title. On June
17, 2020, Tishberg spoke to the client’s ex-
wife’s attorney regarding the transfer of
title to the vehicle, and emailed the
attorney a copy of a record from the
Wisconsin Department of Transportation
showing that Landmark Credit Union held a
lien on the vehicle. At the time Tishberg’s
representation of the client ended on July
17, 2020, Tishberg was unaware if the title
issue had been resolved. According to
Wisconsin Circuit Court Access Records,
neither the title issue nor Marital
Equalization Payment issue were resolved
until October 26, 2020.
On July 10, 2020, Tishberg wrote to the
client (OLR was copied on the letter) stating
that he had been unable to reach the client
for “over two weeks” and that the client
needed to address the title to the vehicle.
Tishberg informed the client that he had
filed a motion to withdraw from his
representation of the client due to the
client’s failure to communicate.
The civil case in which Tishberg represented
the client stemmed from a dispute between the
client and a building restoration service
(“Plaintiff”). Plaintiff had been hired by
the client and his ex-wife to repair damages
to their home and garage that had resulted
from a fire. The dispute involved two
payments made by the client’s insurer to be
paid to Plaintiff for his repair work. The
two checks had to be signed by both the
client, the client’s ex-wife, and Plaintiff
in order to be cashed.
On September 3, 2019, the same day that
Tishberg entered the civil case, Plaintiff
filed a motion for default judgment. On or
around September 5, 2019, Tishberg received
notice of the motion and told the client that
he would handle the matter. Tishberg set up
a meeting with the parties and counsel for
September 21, 2019 to discuss the case. On
September 10, 2019, the court scheduled a
hearing on the motion for default judgment
for October 10, 2019. No appearances were
made at the October 10, 2019 motion hearing,
and no motion had been filed to expand time
limits. Consequently, the court granted
judgment against the client. As to the
client’s ex-wife, also a defendant in the
matter, the matter remained open because an
answer had been filed on her behalf.
Tishberg did not inform the client of the
October 10, 2019 motion hearing. Tishberg
stated that he did not receive notice of the
hearing because it may have gone to his “spam
mail.” Tishberg had not taken any steps to
determine whether a motion hearing had been
scheduled because he “wrongfully believed
that the ‘default’ had been withdrawn” at the
September 21, 2019 meeting. Tishberg took no
steps to verify whether the motion for
default judgement had been vacated.
On November 1, 2019, the court entered an
order for default judgment against the
client. Judgment was entered against the
client in the amount of $83,325.06, plus 1.5%
monthly interest beginning on June 1, 2019,
representing a lien under Chapter 779 of the
Wisconsin Statutes. The order required the
sheriff’s department to auction the client’s
property. Tishberg learned of the default
judgment on or around October 22, 2019, upon
receiving an email with the proposed default
order. Tishberg acknowledged, “The judgment
against Joseph Chiarello was probably the
result of the default actually entered on
October 10, 2019.
On December 27, 2019, Tishberg sent to the
client’s ex-wife’s attorney a list provided
by the client’s insurer of all checks paid by
the insurer relating to the client’s claim.
Tishberg noted in his email to the attorney
that there was approximately $23,821 paid by
the client’s insurer that Tishberg could not
account for. Tishberg asked the client’s ex-
wife’s attorney if the ex-wife could account
for that money.
On March 12, 2020, Tishberg appeared
telephonically for a motion hearing on a
motion for summary judgment that had been
filed on December 6, 2019 against the
client’s ex-wife. Wisconsin Circuit Court
Access notes for the hearing stated, “Atty
Tischberg [sic] hangs up as he does not
represent [the client’s ex-wife]; [the
client’s ex-wife] does not appear; [attorney
for the client’s ex-wife] moves for summary
judgment as to [the client’s ex-wife]; Court
grants judgment against [the client] by
default and [the client’s ex-wife] by summary
judgement.” Tishberg stated that after he
entered the hearing by telephone, the judge
in the matter told him he could not
participate in the hearing because he did not
represent the client’s ex-wife, who was the
only defendant named in the summary judgment
motion. Tishberg further stated to OLR:
I do not understand how [the judge]
could
issue a default judgment against [the
client], as [the client] was not a named
party to the Summary Judgment, and [the
judge] prohibited me from participating in
the hearing. Further, as of June 21, 2020,
there is no Order filed for me to challenge
or appeal.
At the March 12, 2020 hearing, Tishberg
planned on addressing the default judgment
entered against the client. The only other
steps taken by Tishberg to address the
default judgment was speaking to Plaintiff’s
counsel “about paying off the contract amount
owed.” On April 17, 2020, Tishberg filed a
Notice of Motion and Motion to Vacate Default
Judgment and Reopen Matter. On September 8,
2020, a motion hearing was held, with
successor counsel appearing on the client’s
behalf. The court granted the motion and
reopened the matter, finding that Tishberg’s
“mistake/inadvertence are grounds and
defendant may have a defense.”
As for remaining matters, Tishberg agreed to
seek the removal of Wisconsin Circuit Court
Access records for a previously dismissed
criminal matter against the client. Tishberg
failed to take steps to complete this matter
on the client’s behalf because of a heavy
workload and later the onset of the COVID-19
pandemic.
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SCR 20:1.3 states, “A lawyer shall act with
reasonable diligence and promptness in
representing a client.” Tishberg violated
SCR 20:1.3 as follows:
• In the divorce, by failing to timely
file Findings of Fact, Conclusions of Law,
and Judgment prior to the court issuing a
show cause order on March 27, 2020.
• In the divorce, by failing follow up
on the $346 check issued by Kemper Insurance,
which was sent to counsel for the client’s
ex-wife for signature on April 13, 2020.
• In the divorce, by failing to take
reasonable steps from March 22, 2020 to June
17, 2020 to ensure his client complied with
the marital settlement agreement as it
related to the transfer of title of the
vehicle.
• In the civil action, by failing
determine the status of the Plaintiff’s
motion for default judgment subsequent to the
September 21, 2019 meeting, which resulted in
a default judgment being entered against his
client.
• In the civil action, subsequent to
learning on October 22, 2019 of the default
judgment entered against his client, by
failing to take steps, other than a failed
attempt at a March 12, 2020 motion hearing,
to address the default judgment until filing
a Motion to Vacate Default Judgment and
Reopen Matter on April 17, 2020.
• By failing to take steps seek the
removal of Wisconsin Circuit Court Access
records for Dodge County case no. 19CF57.
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By failing to provide to the client a written
fee agreement defining the scope of his
representation in all matters and explaining
the purpose and effect of the fees and
advanced fees paid to him, Tishberg violated
SCR 20:1.5(b)(1), which states, “The scope of
the representation and the basis or rate of
the fee and expenses for which the client
will be responsible shall be communicated to
the client in writing, before or within a
reasonable time after commencing the
representation, except when the lawyer will
charge a regularly represented client on the
same basis or rate as in the past. If it is
reasonably foreseeable that the total cost of
representation to the client, including
attorney's fees, will be $1000 or less, the
communication may be oral or in writing. Any
changes in the basis or rate of the fee or
expenses shall also be communicated in
writing to the client,” and 20:1.5(b)(2),
which states, “If the total cost of
representation to the client, including
attorney's fees, is more than $1000, the
purpose and effect of any retainer or advance
fee that is paid to the lawyer shall be
communicated in writing.”
On August 14, 2018, Tishberg entered a Forest
County case representing a client. The
client faced several charges, including
felony possession cocaine and THC. Tishberg
was the client’s third attorney in the
matter. While the Forest County case was
pending, the client was charged in Milwaukee
County with three felony counts, including
possession with intent to deliver a
controlled substance, fleeing or eluding an
officer, and second-degree recklessly
endangering safety. The criminal complaint
against the client was filed in Milwaukee
County on April 11, 2019. Tishberg also
represented the client in the Milwaukee
County case, appearing with her at her
initial appearance on April 11, 2019.
On May 21, 2020, Tishberg filed a Notice of
Motion and Motion to Modify Sentence in the
Milwaukee County case. The motion requested
an additional thirty-six days sentencing
credit for the client, based on the client’s
incarceration on the matter from April 6,
2019 until her release on bail on May 11,
2019.
By letter dated May 21, 2020, a Staff
Attorney for the Milwaukee County Clerk of
Circuit Court, Criminal Division, requested
that Tishberg provide additional information
relating to his motion to modify sentence in
the Milwaukee County case. The Staff
Attorney stated:
You are requesting 36 days of
additional
sentence credit for the period of April 6,
2019 to May 11, 2019. It appears that your
client may have been in custody for some of
this period in connection with [the Forest
County case]. Judge Stenz ordered 118 days
of credit at the July 31, 2019 sentencing
hearing in that case and ordered the
defendant to serve a year in jail as a
condition of probation. The court will
require more information about the credit and
condition time ordered in the Forest County
case. Specifically, the 118 days of credit
represents credit for what days in custody?
Also, when did the defendant commence serving
the condition time and when did or does that
term expire? The court will require a
written response that may be efiled or sent
to my attention . . . .
Tishberg did not respond to the Staff
Attorney’s May 21, 2020 letter. Subsequent
to receiving the letter, Tishberg stated he
spoke with the Staff Attorney and determined
that the client was probably not entitled to
the thirty-six-day credit because those days
had been utilized in the client’s Forest
County case. On March 8, 2021, Office of
Lawyer Regulation staff spoke with the Staff
Attorney, who did not recall speaking with
Tishberg regarding the client’s case
subsequent to his May 21, 2020 letter. The
Staff Attorney stated that he had expected
Tishberg to respond to his May 21, 2020 with
the information requested therein.
On August 13, 2020, Tishberg filed a second
Notice of Motion and Motion to Modify
Sentence in the Milwaukee County case.
Tishberg stated to OLR that he had “decided
to modify my original motion, and file a new
motion arguing that the credit time was
“stayed”, and that [the client] should have
the 36 days credited to [the client]’s
imposed Milwaukee sentence.” Tishberg
further stated to OLR that while the Staff
Attorney had initially convinced him that the
client was not entitled to the thirty-six-day
credit, further thought led him to file the
August 13, 2020 motion. Tishberg did not
intend for the August 13, 2020 motion to
serve as a response to the Staff Attorney’s
May 21, 2020 letter.
In the August 13, 2020 motion, Tishberg
argued that while the client received some
credit in her Forest County case, that credit
was stayed until such time as the client was
revoked (if revocation occurred). Tishberg
further argued that the thirty-six-day credit
should be applied to the client’s Milwaukee
County case because she had served that time
in the Milwaukee County Jail. By order dated
December 14, 2020, the court in the client’s
Milwaukee County case denied Tishberg’s
August 13, 2020 motion. In the order, the
court stated:
The court cannot grant the defendant an
additional 36 days of credit in this case if
she already received a windfall of 104 days.
If the defendant wishes to pursue her request
for additional credit, she must provide the
court with the information requested in [the
Staff Attorney’s] May 21, 2020, letter.
Finally, the court advised the client that if
she could provide information showing that
she was given credit in her Milwaukee County
case “while she was serving condition time in
her Forest County case,” the court may amend
its order.
On December 29, 2020, Tishberg filed a Notice
of Motion and Motion to Modify Sentence in
Forest County case no. 17CF106. The motion
argued that because the client had been
incarcerated in Milwaukee County Jail from
April 6, 2019 until May 11, 2019, and because
Forest County had placed their “hold” on the
client on April 8, 2019, the client should
have received the thirty-six-day credit in
her Milwaukee County case rather than her
Forest County case. On February 4, 2021, the
Forest County court denied the motion,
stating that the credit had been
appropriately applied.
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By failing to respond to the Milwaukee County
Clerk of Circuit Court, Criminal Division
Staff Attorney’s May 21, 2020 letter,
Tishberg violated SCR 20:1.3. SCR 20:1.3
states, “A lawyer shall act with reasonable
diligence and promptness in representing a
client.”
On or around December 10, 2018, a client
hired Tishberg to represent him in a
revocation matter. On or around March 14,
2019, the client hired Tishberg to represent
him in a Milwaukee County criminal matter.
On February 21, 2019, the Division of
Hearings and Appeals issued a decision
revoking the client’s extended supervision in
two Milwaukee County criminal matters.
According to Wis. Stat. § 893.735(2), the
client had forty-five days from the date of
the February 21, 2019 decision to file a
petition for a writ of certiorari. The
deadline for filing could not be extended for
any reason.
On April 9, 2019, Tishberg filed a petition
for a writ of certiorari on the client’s
behalf. Tishberg filed the petition beyond
the deadline established in Wis. Stat. §
893.735(2). Tishberg stated that he either
miscounted the days, or he may have believed
that a letter he had written on February 27,
2019, to the Administrator for Hearing and
Appeals, asking the Administrator to
reconsider his appeal decision provided
Tishberg with additional time to file.
Tishberg stated that while he is uncertain if
he believed his February 27, 2019 letter
extended the deadline, he “should have known
that it did not extend the deadline for an
[sic] Writ.” The Administrator did not
respond to Tishberg’s February 27, 2019
letter.
On April 19, 2019, the court dismissed the
client’s petition for a writ of certiorari
because the petition had been filed outside
of the forty-five day deadline. Tishberg did
not take any additional steps to remedy the
dismissal of the petition because his reading
of Wis. Stat. §893.735(2) confirmed that the
deadline was jurisdictional and could not be
extended for any reason.
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By failing to file a petition for a writ of
certiorari on his client’s behalf by the
statutory deadline due to miscalculating the
deadline or erroneously believing the deadline
had been extended, Tishberg violated SCR
20:1.1. SCR 20:1.1 states, “A lawyer shall
provide competent representation to a client.
Competent representation requires the legal
knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.”
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Tishberg previously received a public reprimand
on October 12, 2020 for violations of SCR
20:1.3, 20:1.5(c), and 20:3.4(d). Tishberg
also previously received a public reprimand in
2014 for violations of former SCR 20:1.2(a),
20:1.3, 20:1.4(a)(3) and (4), 20:1.4(b),
20:1.5(c), and 20:8.4(c).
In accordance with SCR 22.09(3), Attorney Mark
S. Tishberg is hereby publicly reprimanded.
Dated this 28th day of August, 2021.
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