Office of Lawyer Regulation v. Tim Osicka

2014 WI 34

SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP434-D
COMPLETE TITLE: Office of Lawyer Regulation,
Complainant,
v.
Tim Osicka,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST OSICKA

OPINION FILED: June 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED: ABRAHAMSON, C.J., concurs. (Opinion filed.)
DISSENTED: PROSSER, J., dissents. (Opinion filed.)
NOT PARTICIPATING: BRADLEY, J., did not participate.

ATTORNEYS:
 2014 WI 34
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP434-D

STATE OF WISCONSIN : IN SUPREME COURT

Office of Lawyer Regulation,

Complainant, FILED
v. JUN 6, 2014
Tim Osicka, Diane M. Fremgen
Clerk of Supreme Court
Respondent.

ATTORNEY disciplinary proceeding. Attorney's license

suspended.

¶1 PER CURIAM. We review the report of the referee,

Reserve Judge Robert E. Kinney, recommending that the court
suspend the license of Attorney Tim Osicka for 60 days

concurrently with any suspension imposed in Case No. 2012AP60-D,

and that the court order Attorney Osicka to pay the full costs

of this disciplinary proceeding, which were $1,120.04 as of

September 12, 2013.

¶2 Because no appeal has been filed from the referee's

report and recommendation, we review the matter pursuant to
 No. 2013AP434-D

SCR 22.17(2).1 After considering the referee's report and the

record in this matter, we agree that Attorney Osicka committed

the acts of professional misconduct alleged in the three counts

of the complaint filed by the Office of Lawyer Regulation (OLR).

We further agree with the referee that, since the misconduct

here could have been included in the complaint in the previously

filed disciplinary proceeding against Attorney Osicka, Case

No. 2012AP60-D, the proper level of discipline to be imposed is

a 60-day suspension that is concurrent with the suspension

imposed in that case. Finally, since Attorney Osicka initially

disputed some portions of the OLR's complaint and the

stipulation he entered was only partial in nature, we require

Attorney Osicka to pay the full costs of this proceeding.

¶3 Attorney Osicka was admitted to the practice of law in

this state in September 1986. He most recently maintained a

private law practice in Schofield. His license has been

temporarily suspended since February 2012 due to his failure to

cooperate in an OLR investigation.
¶4 Attorney Osicka has been the subject of professional

discipline on multiple prior occasions. In 2002 he consented to

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.

2
 No. 2013AP434-D

the imposition of a public reprimand for misconduct arising out

of four separate matters. Public Reprimand of Tim Osicka,

No. 2002-02. His misconduct in that proceeding involved failing

to act with diligence, failing to communicate adequately with

his clients, failing to provide competent representation, making

statements regarding the integrity of a judge with reckless

disregard for the truth, and violating his attorney's oath.

¶5 In 2009 this court publicly reprimanded

Attorney Osicka after concluding that he had failed to respond

adequately to his client's reasonable requests for billing

information and an accounting of the advanced fee she had paid,

and that in another matter he had willfully failed to disclose

relevant factual information to the OLR in response to its

requests. In re Disciplinary Proceedings Against Osicka, 2009

WI 38, 317 Wis. 2d 135, 765 N.W.2d 775.

¶6 In 2010 Attorney Osicka again consented to the

imposition of a public reprimand. Public Reprimand of

Tim Osicka, No. 2010-OLR-7. The misconduct underlying this
reprimand included failing to deposit an advanced fee into a

client trust account, failing to communicate adequately with his

client, failing to refund the unearned portion of an advanced

fee, and engaging in the practice of law while his law license

was administratively suspended for nonpayment of dues and

assessments.

¶7 As noted above, Attorney Osicka is also the subject of

another pending disciplinary proceeding, Case No. 2012AP60. In
that proceeding, which is being resolved by a separate opinion
3
 No. 2013AP434-D

and order issued today, we conclude, based on Attorney Osicka's

default, that he engaged in four counts of misconduct, including

that he failed to place a client's advanced fee into a client

trust account or to provide the notices required by the

alternative advanced fee procedure, that he charged an

unreasonable fee because he did not complete the representation,

that he failed to refund unearned fees, and that he failed to

provide full and timely responses to the OLR's requests for

information. In re Disciplinary Proceedings Against Osicka,

2014 WI 33, ___ Wis. 2d ___, ___ N.W.2d ___. In that case, we

determine that a 60-day suspension of Attorney Osicka's license

to practice law in this state is an appropriate level of

discipline for the misconduct at issue there. The misconduct

alleged in that proceeding generally occurred in the fall of

2008.

¶8 The OLR filed the complaint in this proceeding in

February 2013. The complaint alleged three counts of

misconduct. Attorney Osicka initially filed an answer in March
2013, in which he admitted some of the factual allegations of

the complaint and denied other allegations. He also alleged in

his answer that the OLR had engaged in disparate treatment of

him with an intent to injure his reputation and take away his

law license. Attorney Osicka's answer asked the court to find

no violation, technical or otherwise, of the Rules of

Professional Conduct for Attorneys and to assess no costs

against him related to this proceeding.

4
 No. 2013AP434-D

¶9 Attorney Osicka subsequently entered into a

stipulation and no contest plea. In the stipulation, he

withdrew his answer and pled no contest to each of the factual

allegations in the OLR's complaint. He further agreed that the

referee could make a determination of misconduct on the three

counts alleged in the complaint on the basis of those facts.

Attorney Osicka also verified in the stipulation that his no

contest plea was not the result of plea bargaining, that he

fully understood the misconduct allegations against him and his

right to contest those allegations, that he understood the

ramifications of his entry into the stipulation, that he also

understood his right to consult with counsel but was choosing to

proceed pro se, and that his entry into the stipulation was made

knowingly and voluntarily.

¶10 The stipulation did not contain an agreement regarding

the appropriate level of discipline to be imposed. It provided

that the parties would submit written arguments on that issue to

the referee.
¶11 The referee accepted the stipulation and found, based

on the stipulation, that the facts in the OLR's complaint were

true and that they supported a conclusion of misconduct on all

three counts.

¶12 The facts underlying the three counts of misconduct

are as follows. In May 2011 Attorney Osicka was retained by

R.B. to represent him in a divorce proceeding in the Lincoln

County circuit court. On June 6, 2011, Attorney Osicka's
license to practice law in Wisconsin was administratively
5
 No. 2013AP434-D

suspended due to his failure to comply with the obligation to

report the required number of continuing legal education (CLE)

credits. On June 16, 2011, despite his license having been

suspended, Attorney Osicka filed a letter brief in the divorce

case in response to arguments that had taken place at the end of

May.2 After subsequently discovering that Attorney Osicka's

license had been suspended, the circuit court wrote a letter to

Attorney Osicka and informed him that it could not consider the

contents of his letter brief because of his suspension.

¶13 In addition, Attorney Osicka failed to notify any of

his clients or the courts in which he had matters pending that

his license had been administratively suspended. He also failed

to advise opposing counsel in R.B.'s divorce action. He further

did not file the affidavit that SCR 22.26 requires a suspended

attorney to file with the OLR.

¶14 When the OLR was advised of Attorney Osicka's action

after the suspension of his license, it sent a letter to him on

July 21, 2011, requesting that he respond to the allegations of
misconduct it had received. Attorney Osicka failed to respond

to this letter. The OLR then sent a second letter on

September 30, 2011, and a third letter on November 28, 2011,

2
In his answer and in the stipulation, Attorney Osicka
asserts that he filed the letter brief because he felt that
SCR 22.26(1)(d) allowed him to wrap up his work on the case
before transferring it to another lawyer and, in any event, his
duty to file the brief on behalf of his client, as the circuit
court had previously directed, superseded any violation of
SCR 22.26, which he considered to be a technical violation at
most.

6
 No. 2013AP434-D

again asking for a response. Attorney Osicka still failed to

provide a response.

¶15 In December 2011 the OLR moved this court for a

temporary suspension of Attorney Osicka's license due to his

failure to cooperate with their investigation. The court issued

an order to Attorney Osicka directing him to show cause why his

law license should not be suspended due to his willful failure

to cooperate. When Attorney Osicka did not respond to the

court's order, the court temporarily suspended Attorney Osicka's

license on February 23, 2012.3 Attorney Osicka's license has

remained suspended to the date of this opinion and order.

¶16 On the basis of these facts, the referee concluded

that Attorney Osicka had committed three counts of professional

misconduct. First, by submitting a letter brief to a court on

behalf of a client and thereby engaging in the practice of law

while his license was suspended, Attorney Osicka violated

SCR 31.10,4 which is enforced via SCR 20:8.4(f).5 Second, by

3
Attorney Osicka did finally respond in September 2012 to a
report that the OLR had sent him, although he apparently did not
respond to the OLR's requests for information about its
grievance investigation, as the OLR has never asked for the
temporary suspension to be lifted. In his September 2012
response, Attorney Osicka advised the OLR that he had closed his
law practice in June 2011.
4
SCR 31.10 states as follows:

(1) If a lawyer fails to comply with the
attendance requirement of SCR 31.02, fails to comply
with the reporting requirement of SCR 31.03(1), or
fails to pay the late fee under SCR 31.03(2), the
board shall serve a notice of noncompliance on the
lawyer. This notice shall advise the lawyer that the
7
 No. 2013AP434-D

failing to notify clients, opposing counsel, and relevant courts

of his suspension; by failing to submit the required affidavit

to the OLR; and by engaging in the practice of law following his

suspension, Attorney Osicka violated SCR 22.26(1) and (2),6 which

lawyer's state bar membership shall be automatically
suspended for failing to file evidence of compliance
or to pay the late fee within 60 days after service of
the notice. The board shall certify the names of all
lawyers so suspended under this rule to the clerk of
the supreme court, all supreme court justices, all
court of appeals and circuit court judges, all circuit
court commissioners appointed under SCR 75.02(1) in
this state, all circuit court clerks, all juvenile
court clerks, all registers in probate, the executive
director of the state bar of Wisconsin, the Wisconsin
State Public Defender's Office, and the clerks of the
federal district courts in Wisconsin. A lawyer shall
not engage in the practice of law in Wisconsin while
his or her state bar membership is suspended under
this rule.

(2) If the board believes that a false report
has been filed, the board may refer the matter to the
office of lawyer regulation.
5
SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers; . . . ."
6
SCR 22.26(1) and (2) state:

(1) On or before the effective date of license
suspension or revocation, an attorney whose license is
suspended or revoked shall do all of the following:

(a) Notify by certified mail all clients being
represented in pending matters of the suspension or
revocation and of the attorney's consequent inability
to act as an attorney following the effective date of
the suspension or revocation.

(b) Advise the clients to seek legal advice of
their choice elsewhere.

8
 No. 2013AP434-D

(c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation. The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.

(d) Within the first 15 days after the effective
date of the suspension or revocation, make all
arrangements for the temporary or permanent closing or
winding up of the attorney's practice. The attorney
may assist in having others take over clients' work in
progress.

(e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:

(i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
procedures regarding the closing of the attorney's
practice.

(ii) A list of all jurisdictions, including
state, federal and administrative bodies, before which
the attorney is admitted to practice.

(iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.

(f) Maintain records of the various steps taken
under this rule in order that, in any subsequent
proceeding instituted by or against the attorney,
proof of compliance with the rule and with the
suspension or revocation order is available.

(2) An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any law work activity
customarily done by law students, law clerks, or other
9
 No. 2013AP434-D

is also enforced via SCR 20:8.4(f). Finally, by failing to

respond to the OLR's notice of grievance or to otherwise provide

information requested by the OLR, Attorney Osicka violated

SCR 22.03(2) and (6),7 which are enforced via SCR 20:8.4(h).8

paralegal personnel, except that the attorney may
engage in law related work in this state for a
commercial employer itself not engaged in the practice
of law.
7
SCR 22.03(2) and (6) state as follows:

(2) Upon commencing an investigation, the
director shall notify the respondent of the matter
being investigated unless in the opinion of the
director the investigation of the matter requires
otherwise. The respondent shall fully and fairly
disclose all facts and circumstances pertaining to the
alleged misconduct within 20 days after being served
by ordinary mail a request for a written response.
The director may allow additional time to respond.
Following receipt of the response, the director may
conduct further investigation and may compel the
respondent to answer questions, furnish documents, and
present any information deemed relevant to the
investigation.

. . . .

(6) In the course of the investigation, the
respondent's wilful failure to provide relevant
information, to answer questions fully, or to furnish
documents and the respondent's misrepresentation in a
disclosure are misconduct, regardless of the merits of
the matters asserted in the grievance.
8
SCR 20:8.4(h) states it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by SCR
21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1); . . . ."

10
 No. 2013AP434-D

¶17 The referee agreed with the OLR that a 60-day

suspension would be an appropriate level of discipline to be

imposed. He agreed that this level of discipline was supported

by the 60-day suspension this court imposed against

Attorney Richard Engelbrecht, who had (1) engaged in the

practice of law by conducting a trial and submitting a letter

brief in a small claims eviction action while his license to

practice law was administratively suspended, (2) failed to

provide notice of his suspension to the small claims court or

opposing counsel, and (3) provided false and misleading

information about his conduct to the Board of Bar Examiners

(BBE) and the Board of Attorneys Professional Responsibility

(BAPR). In re Disciplinary Proceedings Against Engelbrecht,

2000 WI 120, 239 Wis. 2d 236, 618 N.W.2d 743.

¶18 The referee disagreed with the OLR, however, regarding

its request that the suspension issued in this case be made

consecutive to the suspension imposed in Case No. 2012AP60-D.

The referee questioned why the OLR had filed two separate
disciplinary complaints. He pointed out that Attorney Osicka's

filing of the letter brief during his suspension occurred in

June 2011, and that his misconduct was noticed by the circuit

court and brought to the attention of the OLR within weeks.

Moreover, Attorney Osicka's failure to respond to the OLR's

letters took place in the fall of 2011. Thus, all of the

misconduct alleged in this action occurred prior to the filing

of the complaint in Case No. 2012AP60-D. The referee commented
that there really should not have been a concurrent versus
11
 No. 2013AP434-D

consecutive issue here. All of the misconduct could have been

addressed in a single proceeding, which would have resulted in a

single sanction. Further, the referee, who also presided over

the proceedings in Case No. 2012AP60-D, stated that if all of

the counts of misconduct had been included in a single

complaint, it was doubtful that the OLR would have sought more

than a 60-day suspension. According to the referee, the only

reason for the request for a consecutive suspension was that the

OLR allowed 13 months to pass after the filing of the first

complaint, and then filed a second complaint. The referee

concluded that a consecutive suspension would not be a fair or

proper result in these circumstances: "Because the respondent

should not be punished for the agency's inattention, and because

60 days is a sufficient sanction, in any event, I will decline

to recommend a consecutive suspension."

¶19 Finally, on the issue of costs, the referee agreed

with the OLR that this case did not present any extraordinary

circumstances, that the costs requested by the OLR had been
necessarily incurred, and that those costs were reasonable in

amount. He therefore recommended that Attorney Osicka be

required to pay the full costs of this proceeding.

¶20 When reviewing a referee's report and recommendation,

we affirm the 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
12
 No. 2013AP434-D

discipline to impose given the particular facts of each case,

independent of the referee's recommendation, but benefiting from

it. In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

¶21 In light of Attorney Osicka's stipulation and no

contest plea, we accept the referee's findings of fact based

upon the allegations of the complaint. We agree with the

referee that those facts demonstrate that Attorney Osicka

committed each of the three counts of misconduct alleged in the

OLR's complaint.

¶22 We comment briefly on Attorney Osicka's contention

that his duty to protect his client's interests trumped his

obligation under SCR 22.26 not to practice law during the period

when his license was administratively suspended.

Attorney Osicka's argument is based upon a false choice—either

he had to submit the brief in violation of SCR 22.26 or his

client would have suffered injury from an inability to present

argument to the circuit court. There is no evidence in the
record that Attorney Osicka notified the circuit court of his

suspension or asked for an extension of time from the circuit

court so that he could either resolve his administrative

suspension and then file the letter brief or assist his client

to find another attorney who could take over the client's case.

As the referee commented, Attorney Osicka "was not the only

attorney in Marathon County capable of providing

representation." It seems highly unlikely that a circuit court
would cause the client to forfeit his/her rights in this
13
 No. 2013AP434-D

situation where it is the lawyer whose conduct has created the

need for a delay and/or a substitution of counsel.

¶23 Moreover, there was no need for this "crisis" to have

occurred. The deadline for Attorney Osicka to have complied

with his CLE reporting requirements was February 1, 2011.

SCR 31.03(1). Anyone who fails to meet this requirement is

given a 60-day notice by the BBE that the failure to file

evidence of CLE compliance and to pay the applicable late fee

will result in the administrative suspension of the attorney's

license. SCR 31.10(1). The administrative suspension of

Attorney Osicka's license was therefore no surprise to him. He

cannot fail to take action to avoid the administrative

suspension of his license and then argue that he should be

allowed to continue working on pending cases during his

suspension in order to avoid harm to the client.

¶24 Turning to the level of discipline and the relation of

this proceeding to Case No. 2012AP60-D, we agree with the

referee that the proper level of discipline is a 60-day
suspension and that it should be served concurrently with the

suspension imposed in Case No. 2012AP60-D. Like the referee, we

see no reason why the allegations in this complaint could not

have been included in the complaint in Case No. 2012AP60-D,

either originally or by amending the complaint in that

proceeding. We further agree that a reasonable sanction for all

of the misconduct alleged in the two complaints would be a 60-

day suspension and that it would be unfair to impose two

14
 No. 2013AP434-D

separate and consecutive suspensions on Attorney Osicka merely

because of the OLR's choice to file two separate complaints.

¶25 We also determine that it is appropriate to impose the

full costs of this proceeding on Attorney Osicka. Presumably,

even if the OLR had included these misconduct allegations in the

original complaint in Case No. 2012AP60-D or if it had moved to

amend the complaint in that case to add these allegations, there

would have been an increase in the costs beyond what has been

requested in that proceeding. Given that we cannot know if

there would have been some decrease in the total amount of costs

and that the disciplinary proceedings, whether one or two, were

caused by Attorney Osicka's conduct, we conclude that it would

be appropriate for him to pay the full costs of this proceeding,

which were relatively modest in amount.

¶26 IT IS ORDERED that the license of Tim Osicka to

practice law in Wisconsin is suspended for a period of 60 days,

effective June 6, 2014, which is also the effective date of the

suspension being imposed in Case No. 2012AP60-D.
¶27 IT IS FURTHER ORDERED that the temporary license

suspension of February 23, 2012, which arose out of Tim Osicka's

willful failure to respond to or cooperate with the OLR's

grievance investigation in this matter, is lifted.

¶28 IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tim Osicka shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

¶29 IT IS FURTHER ORDERED that Tim Osicka shall comply
with the provisions of SCR 22.26 concerning the duties of a
15
 No. 2013AP434-D

person whose license to practice law in Wisconsin has been

suspended.

¶30 IT IS FURTHER ORDERED that compliance with all

conditions of this order is required for reinstatement. See

SCR 22.28(2).

¶31 ANN WALSH BRADLEY, J., did not participate.

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 No. 2013AP434-D.ssa

¶32 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join

the per curiam opinion. My concurrence in OLR v. Osicka, 2014

WI 33, ___ Wis. 2d ___, ___ N.W.2d ___, is also applicable here:

¶33 Although Attorney Osicka's repeated violations of the

Rules of Professional Conduct for Attorneys in the present case

are not the most horrific the court has encountered, Attorney

Osicka did harm his clients. (And this is not the first time.

Attorney Osicka is a repeat offender.) His clients have

registered complaints and they want to be assured that this

court's lawyer discipline system cares about them as victims of

an attorney's misconduct and that the court will provide the

victims with relief.

¶34 Victims do not expect the court to ignore them and to

treat them as not important enough to redress their grievances.

Victims of attorney misconduct deserve OLR's and the court's

attention.

¶35 I turn to a procedural issue relating to current OLR
practice.

¶36 The OLR filed two complaints against Attorney Osicka

within about a year of each other. The same referee presided

over both proceedings against Attorney Osicka. The referee's

report and recommendation in this, the second action, is dated

August 23, 2013 and is an open public file.

¶37 I note here that the referee commented critically as

follows about the OLR's filing two complaints within about a
year of each other complaining about conduct in which Attorney

1
 No. 2013AP434-D.ssa

Osicka engaged during approximately the same time period. The

referee stated:

It is unclear why the matters involving [Attorney
Osicka] resulted in the filing of two separate
cases. . . . [E]verything else charged in the present
Complaint . . . pre-dated the filing, on January 11,
2012, of the earlier complaint in 2012AP60-D, and the
OLR had knowledge of all the violations at least
several months before January 11, 2012 when the
earlier Complaint was filed. . . . The point is, there
should have been only one Complaint.
¶38 As I have written in OLR v. Johns, 2014 WI 32, ___

Wis. 2d ___, ___ N.W.2d ___, of even date, the OLR disciplinary

system is about 15 years old. Several anomalies and proposed

amendments have been brought to the court's attention. It is

time to institute a review of the system rather than to make

piecemeal adjustments at this time.

¶39 The present case presents issues that should be

considered in such a review.

¶40 For the reasons stated, I write separately.

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 No. 2013AP434-D.dtp

¶41 DAVID T. PROSSER, J. (dissenting). This is the

fifth time Attorney Tim Osicka has been prosecuted by the Office

of Lawyer Regulation (OLR). This fact permits the majority to

proclaim that Attorney Osicka "has been the subject of

professional discipline on multiple prior occasions," Majority

op., ¶4, implying that Attorney Osicka is a truly bad actor.

¶42 There is more to the story.

¶43 The present complaint was filed on February 13, 2013,

almost a year and a half after OLR learned in September 2011

that Attorney Osicka had closed his law office. Attorney Osicka

formally terminated his practice in June 2011 after his

suspension for a continuing legal education (CLE) violation.

OLR nonetheless succeeded in getting Attorney Osicka

"temporarily" suspended on different grounds eight months after

his practice had closed. A year later it filed this complaint.

¶44 This fifth prosecution is based on events that

occurred in the summer and fall of 2011. OLR knew about and

monitored these events. But when OLR filed its fourth complaint

against Attorney Osicka on January 11, 2012, it did not include

the events from 2011 in its fourth complaint. OLR has not

explained its reasons. However, filing a fifth complaint

instead of incorporating the 2011 events into the fourth

complaint, enabled OLR to ask for another 60-day suspension,

which it justified as "progressive discipline." It also

required the appointment of another referee and leads now to the

assessment against Attorney Osicka of more than $1,000 in
additional costs.

1
 No. 2013AP434-D.dtp

¶45 Attorney Osicka gave up resistance to this complaint

in July 2013 by signing a stipulation. The referee filed his

report in late August 2013. OLR filed a statement of costs on

September 12, 2013, but it never moved to lift Attorney Osicka's

"temporary" suspension. In sum, OLR sought a 60-day suspension,

even though Attorney Osicka had been suspended for a CLE

violation since June 6, 2011, and had closed his practice. He

has been "temporarily" suspended for one of the grounds in this

complaint since February 23, 2012. He has now been suspended on

this count for more than two years.

¶46 This writer is not the only person to comment on the

fifth complaint. Former Oneida County Circuit Judge Robert E.

Kinney, the referee, observed that,

It is unclear why the matters involving the
respondent resulted in the filing of two separate
cases. . . . [T]he OLR had knowledge of all the
violations at least several months before January 11,
2012 when the earlier complaint was filed. . . . The
counts in the present Complaint could have been filed
with the other counts in 2012AP60-D, and, from the
point of view of judicial (or referee) expedition and
cost-saving, should have been so filed. If the OLR
wished to delay for a few weeks the filing of the
earlier Complaint to tie up loose ends on the more
recent charges, fine. The point is, there should have
been only one Complaint. Furthermore, had the three
counts of the present Complaint been joined with the
earlier charges, it is doubtful that more than a 60[-
day suspension] would have been sought on all the
charges.
¶47 In this case, Attorney Osicka is charged with engaging

in the practice of law while his license was suspended for

failing to satisfy, or failing to report the satisfaction of,
CLE requirements. After his suspension, Attorney Osicka

2
 No. 2013AP434-D.dtp

submitted a letter brief on behalf of a client in a divorce

case. He first entered an appearance in that case on May 26,

2011——before the suspension——and was ordered that day to file a

brief by June 16.

¶48 On June 6, 2011, he was suspended for his CLE

violation. Attorney Osicka erred in continuing to practice

after this suspension. I would feel more strongly about this

count if the attorney showed indifference to the client's

interest or if the evidence of consistent OLR prosecution in

similar situations were clear.

¶49 The second count builds on the first——failure to

provide notice of his suspension to all clients and courts in

each pending matter, failure to notify adverse counsel, and

failure to submit an affidavit to the OLR director that these

steps had been taken. Keeping in mind that Attorney Osicka

closed his law practice in the same month as his CLE suspension,

there is no evidence in the complaint or in the referee's

findings of how many persons other than the people involved in

Count 1 were affected by the violations in Count 2. Part of

Count 2, "engaging in the practice of law while his license to

practice [ ] law was suspended," is essentially the same as

Count 1. Compare the cited SCR sections: "A lawyer shall not

engage in the practice of law in Wisconsin while his . . . state

bar membership is suspended" (SCR 31.10(1)) [Count 1], with "An

attorney . . . who is suspended from the practice of law may not

engage in this state in the practice of law" (SCR 22.26(2))
[Count 2].

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¶50 Count 3 is "failing to provide relevant information to

OLR in a timely fashion" and "failing to answer questions fully

or otherwise provide information requested by OLR," all of which

occurred after Attorney Osicka closed his practice.

¶51 OLR moved to "temporarily" suspend Attorney Osicka's

license because of the conduct in Count 3. Two years of

"temporary" suspension later, he is suspended for an additional

60 days, albeit concurrently with the additional 60 days in the

fourth complaint, based in part on this count.

¶52 Looking at this case, it is obvious that only

criminals are entitled to "sentence credit."

¶53 The court's opinion in this fifth prosecution, like

its opinion in the fourth prosecution, is one-sided. The court

portrays itself as fair and reasonable by making Attorney

Osicka's 60-day suspension here concurrent with his 60-day

suspension in the fourth case. If the court were seriously

interested in being equitable, however, it would make the

effective date of this suspension retroactive to February 13,

2013, and eliminate the costs in this case.

¶54 For the reasons stated herein and more fully stated in

my dissent in the fourth case,1 OLR v. Tim Osicka, 2014 WI 33,

___ Wis. 2d ___, ___ N.W.2d ___, I respectfully dissent.

1
For the record, my dissent in the fourth case was
circulated to the members of the court in April 2013.

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