2014 WI 33
SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP60-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Tim Osicka, Attorney at Law:
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 33
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP60-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Tim Osicka, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUN 6, 2014
v.
Diane M. Fremgen
Clerk of Supreme Court
Tim Osicka,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review Reserve Judge Robert E.
Kinney's recommendation that this court suspend
Attorney Tim Osicka's license to practice law in Wisconsin for a
period of 60 days for professional misconduct. The referee also
recommended that Attorney Osicka be required to pay restitution
to an injured client, and that he pay the costs of this
proceeding.
No. 2012AP60-D
¶2 Because no appeal has been filed, we review the
referee's report pursuant to SCR 22.17(2).1 After conducting our
independent review of the matter, we accept and adopt the
referee's findings of fact, which were based on the allegations
of the complaint filed by the Office of Lawyer Regulation (OLR),
due to Attorney Osicka's default. We agree that the OLR is
entitled to a default judgment, and we determine that
Attorney Osicka's misconduct warrants a suspension of 60 days.
We impose the full costs of this proceeding on Attorney Osicka.
The costs totaled $1,579.97 as of July 30, 2012.
¶3 Attorney Osicka was admitted to practice law in
Wisconsin in 1986. His Wisconsin law license is currently
suspended for noncompliance with continuing legal education
(CLE) requirements, for nonpayment of bar dues, for failing to
comply with the trust account certification requirement, and for
failing to cooperate with the OLR's investigation.
¶4 Attorney Osicka has been the subject of prior
professional discipline. In 2002 this court publicly
reprimanded Attorney Osicka for failing to communicate
adequately with his client, failing to act with reasonable
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. 2012AP60-D
diligence, failing to provide competent representation, making
statements regarding the integrity of a judge with reckless
disregard for truth or falsity, and violating the attorney's
oath by disrespecting the court. Public Reprimand of
Tim Osicka, No. 2002-02. In 2009 this court publicly
reprimanded Attorney Osicka for willfully failing to disclose
information to the OLR during a grievance investigation and
failing to comply promptly with a client's requests for
information. In re Disciplinary Proceedings Against Osicka,
2009 WI 38, 317 Wis. 2d 135, 765 N.W.2d 775. In 2010 this court
publicly reprimanded Attorney Osicka for failing to deposit a
client's advance fee into a client trust account, failing to
communicate adequately with his client, failing to either refund
the unearned portion of an advance fee or provide an accounting
to the client upon termination of representation, and engaging
in the unauthorized practice of law by practicing law when his
law license was suspended for nonpayment of State Bar dues.
Public Reprimand of Tim Osicka, No. 2010-OLR-7.
¶5 On January 11, 2012, the OLR filed the current
complaint against Attorney Osicka. It alleges four counts of
professional misconduct, all involving Attorney Osicka's
representation of A.L.'s minor daughter.
¶6 The complaint alleges that in September 2008, A.L.
retained Attorney Osicka to represent her minor daughter on a
delinquency petition filed in Marathon County circuit court.
The minor had been arrested for marijuana possession as a
3
No. 2012AP60-D
juvenile, and A.L. sought to minimize her daughter's potential
punishment.
¶7 Attorney Osicka charged A.L. a $750 advance fee, which
A.L. paid. Attorney Osicka and A.L. entered into a fee
agreement which provided, "Client agrees to pay a flat fee of
$750 for this service. That fee, upon payment, becomes the
property of the law firm. It will be deposited in Attorney's
business account, rather than the firm's trust account, and
Client hereby specifically agrees that Attorney may do so."
¶8 Attorney Osicka did not place any of the advanced fees
in trust, nor did he provide any of the notices required under
SCR 20:1.15(b)(4m)2 for the alternative treatment of advanced
fees.
2
SCR 20:1.15(b)(4m) states as follows: Alternative
protection for advanced fees.
A lawyer who accepts advanced payments of fees
may deposit the funds in the lawyer's business
account, provided that review of the lawyer's fee by a
court of competent jurisdiction is available in the
proceeding to which the fee relates, or provided that
the lawyer complies with each of the following
requirements:
a. Upon accepting any advanced payment of fees
pursuant to this subsection, the lawyer shall deliver
to the client a notice in writing containing all of
the following information:
1. the amount of the advanced payment;
2. the basis or rate of the lawyer's fee;
3. any expenses for which the client will be
responsible;
4
No. 2012AP60-D
4. that the lawyer has an obligation to refund
any unearned advanced fee, along with an accounting,
at the termination of the representation;
5. that the lawyer is required to submit any
unresolved dispute about the fee to binding
arbitration within 30 days of receiving written notice
of such a dispute; and
6. the ability of the client to file a claim with
the Wisconsin lawyers' fund for client protection if
the lawyer fails to provide a refund of unearned
advanced fees.
b. Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:
1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;
2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and
3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.
c. Upon timely receipt of written notice of a
dispute from the client, the lawyer shall attempt to
resolve that dispute with the client, and if the
dispute is not resolved, the lawyer shall submit the
dispute to binding arbitration with the State Bar Fee
Arbitration Program or a similar local bar association
program within 30 days of the lawyer's receipt of the
written notice of dispute from the client.
d. Upon receipt of an arbitration award requiring
the lawyer to make a payment to the client, the lawyer
5
No. 2012AP60-D
¶9 Attorney Osicka negotiated with Marathon County's
district attorney and social services department on the minor's
behalf, and the parties agreed to a consent decree. The parties
scheduled a court hearing for November 21, 2008, to consider the
consent decree.
¶10 On or about November 17, 2008, Attorney Osicka met
with A.L., and A.L. signed the decree.
¶11 On November 19, 2008, Attorney Osicka informed A.L.
that he would be appearing in an out-of-town court on the day of
the hearing, that he would be calling the court in Marathon
County at the appointed time to discuss the decree, and that
A.L. and her daughter should attend the hearing.
Attorney Osicka explained the hearing's purpose to A.L. and the
minor.
¶12 Attorney Osicka did not appear at the hearing,
however, because he learned that the State Bar of Wisconsin had
administratively suspended his law license for his failure to
pay mandatory dues and assessments. Attorney Osicka informed
the district attorney that he would not attend the hearing to
consider the consent decree. A.L. and her daughter appeared at
the hearing, only to be advised by the court that
Attorney Osicka's license had been suspended, that A.L. needed
to find another attorney on behalf of her daughter, and that the
matter would need to be rescheduled.
shall pay the arbitration award within 30 days, unless
the client fails to agree to be bound by the award of
the arbitrator.
6
No. 2012AP60-D
¶13 Attorney Osicka paid his State Bar dues by credit card
and forwarded a required trust account certification to the
State Bar. The State Bar reinstated Attorney Osicka's law
license on November 24, 2008.
¶14 In the meantime, the circuit court appointed a
different lawyer as the minor's attorney. This lawyer
successfully negotiated a consent decree with the State and the
county's social services department, and the circuit court
approved the decree on December 23, 2008.
¶15 Attorney Osicka did not refund any advanced fees to
A.L. for his representation of the minor.
¶16 A.L. filed a grievance against Attorney Osicka. The
OLR forwarded a notice of formal investigation to
Attorney Osicka, requiring Attorney Osicka to respond fully and
fairly to the grievance.
¶17 Attorney Osicka submitted a partial response to the
notice of formal investigation. In his response,
Attorney Osicka noted that he had successfully negotiated a
consent decree for the minor, that he had been initially unaware
of his suspension, and that he was unable to appear in court on
the minor's behalf. Attorney Osicka did not reply to
allegations that his conduct may have violated certain rules of
professional conduct. In addition, Attorney Osicka did not
provide the OLR with a copy of his file, as had been requested
of him. The OLR sent Attorney Osicka a supplemental
investigative letter, to which Attorney Osicka did not respond.
7
No. 2012AP60-D
¶18 On January 11, 2012, the OLR filed the complaint in
the present case. The OLR's complaint alleged four separate
counts of misconduct. Count One alleged that by failing to
deposit the $750 into his trust account and instead depositing
the money into his law firm operating account, with no evidence
he intended to utilize the alternative fee placement procedures
permitted by SCR 20:1.15(b)(4m), Attorney Osicka violated
SCR 20:1.15(b)(4).3 Count Two alleged that by accepting a $750
fee for a representation he did not complete, Attorney Osicka
charged an unreasonable fee, in violation of SCR 20:1.5(a).4
3
SCR 20:1.15(b)(4) states as follows: Unearned fees and
cost advances.
Except as provided in par. (4m), unearned fees
and advanced payments of fees shall be held in trust
until earned by the lawyer, and withdrawn pursuant to
sub. (g). Funds advanced by a client or 3rd party for
payment of costs shall be held in trust until the
costs are incurred.
4
SCR 20:1.5(a) provides:
A lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable
amount for expenses. The factors to be considered in
determining the reasonableness of a fee include the
following:
(1) the time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client,
that the acceptance of the particular employment will
preclude other employment by the lawyer;
(3) the fee customarily charged in the locality
for similar legal services;
8
No. 2012AP60-D
Count Three alleged that by failing to refund unearned fees to
A.L., Attorney Osicka violated SCR 20:1.16(d).5 Count Four
alleged that by failing to provide relevant information to the
OLR in a timely fashion and by failing to answer questions fully
in response to the OLR's investigation, Attorney Osicka violated
SCR 22.03(2) and (6)6 enforceable through SCR 20:8.4(h).7 The
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or
by the circumstances;
(6) the nature and length of the professional
relationship with the client;
(7) the experience, reputation, and ability of
the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
5
SCR 20:1.16(d) states:
Upon termination of representation, a lawyer
shall take steps to the extent reasonably practicable
to protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
6
SCR 22.03(2) and (6) state:
(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.
9
No. 2012AP60-D
OLR sought a 60-day suspension and an order requiring
Attorney Osicka to pay restitution to A.L. in the amount of
$750.
¶19 The OLR made multiple unsuccessful attempts to serve
the complaint and order to answer on Attorney Osicka, both via
personal service and via certified mail. Having made reasonably
diligent attempts to serve Attorney Osicka, the OLR moved for a
finding of default. Notice of the hearing on the OLR's default
motion was sent to the last known address Attorney Osicka had
provided to the State Bar of Wisconsin, but Attorney Osicka did
not respond or appear at the hearing. On June 18, 2012,
Referee Kinney granted the OLR's default motion.
¶20 The referee subsequently filed a report finding the
facts as alleged in the OLR's complaint and concluding that
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.
7
SCR 20:8.4(h) says 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. 2012AP60-D
Attorney Osicka had committed each of the four counts of
misconduct. Based on the conclusions of misconduct, the referee
recommended that Attorney Osicka's license to practice law in
this state be suspended for 60 days. The referee also
recommended that Attorney Osicka be ordered to pay restitution
to A.L. in the amount of $750.
¶21 Attorney Osicka did not appeal from the referee's
report and recommendation. Thus, we proceed with our review of
the matter pursuant to SCR 22.17(2). We review a referee's
findings of fact subject to the clearly erroneous standard. See
In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,
¶5, 269 Wis. 2d 43, 675 N.W.2d 747. We review the referee's
conclusions of law de novo. Id. We determine the appropriate
level of discipline independent of the referee's recommendation.
See In re Disciplinary Proceedings Against Widule, 2003 WI 34,
¶44, 261 Wis. 2d 45, 660 N.W.2d 686.
¶22 In light of Attorney Osicka's failure to appear or
participate in this case, we accept the referee's recommendation
and agree that Attorney Osicka has defaulted. In light of
Attorney Osicka's default, we accept the allegations set forth
in the complaint as true and conclude that the OLR has met its
burden of proof with respect to the allegations in the
complaint.
¶23 The referee's findings of fact have not been shown to
be clearly erroneous, and we adopt them. We also agree with the
referee's conclusions of law, and we agree with the referee's
recommendation for a 60-day suspension of Attorney Osicka's
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No. 2012AP60-D
license to practice law. Finally, we agree with the referee's
recommendation that Attorney Osicka be required to pay the costs
of this proceeding.
¶24 IT IS ORDERED that the license of Tim Osicka to
practice law in Wisconsin is suspended for a period of 60 days
effective the date of this order.
¶25 IT IS FURTHER ORDERED that Tim Osicka shall comply
with the provisions of SCR 22.26 concerning the duties of a
person whose license to practice law in Wisconsin has been
suspended.
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Tim Osicka shall pay restitution to his former
client, A.L., in the amount of $750.
¶27 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.
¶28 IT IS FURTHER ORDERED that the restitution is to be
completed prior to paying costs to the Office of Lawyer
Regulation.
¶29 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See
SCR 22.28(2).
¶30 ANN WALSH BRADLEY, J., did not participate.
12
No. 2012AP60-D.ssa
¶31 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I join
the per curiam opinion.
¶32 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.
¶33 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.
¶34 I turn to a procedural issue relating to current OLR
practice.
¶35 The OLR filed another complaint against Attorney
Osicka on February 25, 2013, about a year after filing the
complaint in the present case. See OLR v. Osicka, 2014 WI 34,
___ Wis. 2d ___, ___ N.W.2d ___. The OLR filed the complaint
that is the subject of the present proceedings against Attorney
Osicka on January 11, 2012. The same referee presided over both
proceedings against Attorney Osicka. The referee's report and
recommendation in the second action is dated August 23, 2013 and
is an open public file.
1
No. 2012AP60-D.ssa
¶36 I note here that the referee commented critically as
follows about the OLR filing two complaints within about a year
of each other complaining about conduct in which Attorney 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.
¶37 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 for the court to institute a review of the system rather
than to make piecemeal adjustments at this time.
¶38 The present case presents issues that should be
considered in such a review.
¶39 For the reasons stated, I write separately.
2
No. 2012AP60-D.dtp
¶40 DAVID T. PROSSER, J. (dissenting). Attorney Tim
Osicka (Osicka) is not an angel. He has been disciplined on
several occasions. Nonetheless, after looking at his recent
prosecutions, one has to wonder whether Osicka's conduct
warrants the zealous attention it has consistently received from
the Office of Lawyer Regulation (OLR), or whether Osicka has
simply become an easy target because he can no longer afford to
defend himself. Osicka understands from experience that, unless
he prevails on every allegation of misconduct against him, he
will be required to pay all or substantially all costs of the
OLR prosecution.
¶41 This policy has troubled me for years. The supreme
court must be vigilant in protecting the public from attorneys
who do not comply with the ethical obligations of the legal
profession. But not all violations of the code of professional
responsibility are equal in importance. Some violations are
mala in se, others are merely mala prohibitum. Given its
limited resources, OLR should give priority to the former and
balance to the latter. In my view, it has not met that test in
this case.
¶42 I write separately to discuss some background facts
that put this mala prohibitum prosecution in perspective.
I
¶43 Osicka was the subject of a public reprimand in 2002.
Public Reprimand of Tim Osicka, No. 2002-02. My concern here is
1
No. 2012AP60-D.dtp
not with that prosecution but rather with four later efforts to
prosecute him, of which this is the third.
A
¶44 "In 2009 this court publicly reprimanded Attorney
Osicka for willfully failing to disclose information to the OLR
during a grievance investigation and failing to comply promptly
with a client's requests for information." Per Curiam op., ¶4
(citing In re Disciplinary Proceedings Against Osicka, 2009 WI
38, 317 Wis. 2d 135, 765 N.W.2d 775). This is true. What the
Per Curiam does not explain is that the OLR filed four counts
against Osicka and sought to suspend his license for 60 days.
Although OLR failed to prove two of its four counts, the referee
still recommended a 60-day suspension. Osicka was thus forced
to appeal to this court. This court reduced the sanction to a
public reprimand but socked Osicka with $10,116.17 in OLR costs.
Osicka also had to pay for his own attorney. In short, Osicka
had to pay the full costs of his defense and almost all costs of
the OLR prosecution, even though he substantially prevailed.
This was a crippling burden for a sole practitioner.
¶45 The critical events in the present case occurred in
November 2008 during the OLR's prosecution of the 2009
disciplinary matter.
B
¶46 "In 2010 this court publicly reprimanded Attorney
Osicka for failing to deposit a client's advance fee into a
client trust account, failing to communicate adequately with his
client, failing to either refund the unearned portion of an
advance fee or provide an accounting to the client upon
2
No. 2012AP60-D.dtp
termination of representation, and engaging in the unauthorized
practice of law by practicing law when his law license was
suspended for nonpayment of State Bar dues." Per Curiam op., ¶4
(citing Public Reprimand of Tim Osicka, No. 2010-OLR-7). Osicka
claims that he provided little or no defense to these charges
because of the high cost of defending himself.
¶47 With respect to this second of the four recent
disciplinary matters, it should be noted that violations of the
old trust account rule, with respect to advance fees, were
commonplace among criminal defense attorneys and others whose
work on cases quickly exhausted the advance fees. In fact, this
court created an alternative to the standard trust account rule
in response to the old rule's inflexibility. Although Osicka
was found to have violated the old trust account rule, he was
not required to refund any money to his client, implying that he
had earned the whole advance fee.
¶48 The count involving the unauthorized practice of law——
from October 31, 2008, through November 21, 2008——covers the
critical period in the present case. Osicka claimed then that
he sent a check to the State Bar office on November 3, 2008, for
his dues payment. In the 2010 discipline case, the referee
wrote: "There [is] no indication that the State Bar received
Osicka's letter and the check was not negotiated." This
language does not constitute a finding that Osicka never sent
such a check, nor does it rule out the possibility that Osicka's
check bounced because of insufficient funds.
C
3
No. 2012AP60-D.dtp
¶49 In the present case, Osicka is found to have violated
a revised version of the trust account rule, and he is subjected
to "progressive" discipline. However, Osicka's new violation
preceded the 2010 discipline as well as the 2009 discipline, and
he is putting up no defense. He is once again defaulting, at
least in part, to avoid costs.
¶50 The present prosecution also involves violations of
SCR 20:1.5(a) and SCR 20:1.16(d).
¶51 Rule 20:1.5(a) provides in part: "A lawyer shall not
make an agreement for, charge, or collect an unreasonable fee or
an unreasonable amount for expenses." SCR 20:1.5(a). The Per
Curiam sums up this count, saying that "by accepting a $750
[advance] fee for a representation he did not complete, Attorney
Osicka charged an unreasonable fee." Per Curiam op., ¶18. Here
is the rest of the story. Osicka was retained by A.L. in
September 2008 before he was told that he had been suspended for
failing to pay his bar dues. Thereafter, he worked
conscientiously to represent A.L.'s daughter and negotiated a
consent decree with the district attorney for the benefit of the
daughter. Paragraphs 6-12 of the Per Curiam show that Osicka's
problems stemmed from his failure to timely pay his bar dues,
not because he overcharged his client or did not diligently
represent his client. Osicka paid his bar dues on November 21,
2009, by credit card. If, on November 21, the circuit court had
accepted the consent decree as it had been negotiated, or if the
court had rescheduled the hearing without appointing a new
lawyer, there would have been no problem. It was the circuit
4
No. 2012AP60-D.dtp
court's discretionary action that prevented Osicka from
completing the representation.
¶52 On the third count, the referee concluded that Osicka
violated a rule by failing to refund unearned fees, and Osicka
was ordered to refund A.L.'s $750. This means that the referee
determined that Osicka earned nothing for all his work and that
because of the circuit court's decision to oust Osicka from the
case, Osicka was required to refund his entire advance fee.
This may be fair to A.L., who was forced to pay twice for the
same service, but it was not fair to Osicka who is denied
payment for service he performed.
¶53 The lesson to be learned from these counts is twofold:
(1) always pay your bar dues on time, and (2) always defend
yourself if you have a defense. For Osicka, however, the
legitimacy of this response is affected by the costly result of
his 2009 discipline. Now he is ordered to pay another $1,579.97
in costs in this case.
D
¶54 A fourth prosecution is pending. It was filed on
February 25, 2013. This third prosecution was filed January 11,
2012, concerning events that occurred largely before the 2009
discipline. As the Per Curiam notes, Osicka's law license "is
currently suspended for noncompliance with continuing legal
education (CLE) requirements, for nonpayment of bar dues, for
failing to comply with the trust account certification
requirement, and for failing to cooperate with the OLR's
investigation." Per Curiam op., ¶3.
5
No. 2012AP60-D.dtp
¶55 The plain truth is that OLR knew Osicka had closed his
law office and moved out of it no later than September 2011. In
December 2011 OLR filed a sworn affidavit from one of its
investigators alleging, on information and belief, that "Osicka
has ceased practicing law." Thus, OLR knew Osicka had ceased
practicing law before filing this case and before filing the
fourth prosecution.
II
¶56 Why is OLR continuing to file charges against an
attorney who has ceased practicing law? Why is it piling up
legal costs that it expects Osicka to pay?
¶57 These prosecutions raise questions about how OLR uses
its limited resources to protect the public interest——questions
about its priorities.
¶58 Because the answers to questions of this sort are
seldom addressed, I feel compelled to respectfully dissent.
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No. 2012AP60-D.dtp
1