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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No. 2013AP2230-D
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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No. 2013AP2230-D
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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No. 2013AP2230-D
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,
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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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