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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 Court
Rule (SCR) 22.17(2). 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 $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 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.
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¶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) (Count One).
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¶12 The referee concluded that, by
making false statements to PS Finance
representatives on a number of occasions,
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) and SCR 20:8.4
(c) (Count Two).
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¶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
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.
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¶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, 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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