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.
2
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.
4
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,
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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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