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,

 Complainant,

 v.

Howard B. Mitz,

 Respondent.

FILED

APR 3, 2015

Diane M. Fremgen

Clerk of Supreme Court

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 

2

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.
No. 2013AP2300-D 

3

$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 
No. 2013AP2300-D 

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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.
No. 2013AP2300-D 

5

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." 
No. 2013AP2300-D 

6

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, 
No. 2013AP2300-D 

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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.
No. 2013AP2300-D 

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