¶ 73. {concurring). The lawyer discipline system, including the work of the Office of Lawyer Regulation (OLR), the Preliminary Review Committee, the referees, and this court, like any system, has its strengths and also its opportunities for improvement. Reasonable people can and do disagree about the virtues, the snags, and the changes needed.1
¶ 74. But I am disappointed when a justice of this court unfairly and wrongly undermines the lawyer discipline system, a decision of this court, and the actions of the justices joining the per curiam opinion with unwarranted, unfounded accusations. I therefore write in response to Justice Prosser's concurrence/ dissent.
¶ 75. The concurrence/dissent charges that the "handling of [the Humphrey] case has been so irregular that it is unfair to the attorney and seriously undermines confidence in the lawyer regulation system, especially the actions of this court." See concurrence/ dissent, ¶¶ 132, 159.2
*558¶ 76. The concurrence/dissent does not and cannot back up this harsh charge.
¶ 77. In spite of the storm and fury and nasty insinuations about the court's actions, it turns out that the concurrence/dissent disagrees only with the imposition of a 30-day suspension. The concurrence/dissent joins the opinion of the court in concluding that Attorney Humphrey violated the Rules of Professional Conduct twice, by misrepresentations to the trial court.
¶ 78. The referee explicitly found that Attorney Humphrey deliberately misrepresented matters to the trial court: "[A]ny reasonable interpretation of the facts [shows] that for whatever reason [Attorney Humphrey] deliberately misled the court."3 And the court today (including Justice Prosser) affirms the referee's findings.
¶ 79. While attempting to retry the case and downplay the two counts against Attorney Humphrey, labeling them "semantic disputes,"4 the concurrence/dissent acknowledges being "not prepared to assert" that the referee's finding that Attorney Humphrey deliberately misled the trial court is "clearly erroneous."5
¶ 80. The concurrence/dissent thus takes issue with the per curiam opinion only in preferring to impose a public reprimand rather than a 30-day suspension and in seeking to reduce the costs imposed on Attorney Humphrey.
¶ 81. When you read the concurrence/dissent and discard the hyperbole, inappropriate inferences, and *559emotional appeal, the writing amounts to "nothing more than a disagreement among justices about whether an attorney should receive a public reprimand or a relatively brief suspension,"6 an issue that the concurrence/ dissent writes is worthy of "little" discussion.7
¶ 82. With the essence of the concurrence/dissent clearly stated, I turn to inventory the purported "irregularities."
I
¶ 83. The purported "irregularities" recounted in the concurrence/dissent are as follows:
(A) The time elapsing between the beginning of the OLR proceeding and the imposition of discipline (the release of this decision);
(B) The failure to keep the Humphrey and Sommers discipline cases separate;
(C) The change in the membership in the court during the pendency of the Humphrey discipline case;
(D) The dismissal of the third count while not accepting the lower discipline (public reprimand) recommended by the referee; and
(E) The failure of the per curiam opinion to pursue a defense that Attorney Humphrey claimed but did not prove.8
¶ 84. I will address each in turn.
*560A
¶ 85. The concurrence/dissent describes the time elapsing between the beginning of the OLR proceeding and the imposition of discipline as "unseemly."9
¶ 86. An abbreviated time line of the four steps in the disciplinary proceedings in the Humphrey and Sommers cases shows that the bulk of the time that has elapsed in the Humphrey case between the challenged conduct and the final decision by this court has been at this court.10 So what happened here?
*561¶ 87. The two discipline cases, Humphrey and Sommers, have their genesis in the same criminal prosecution in which Attorney Humphrey was the prosecutor and Attorney Sommers was the defense counsel. It was clear from the very beginning that the conduct of each attorney affected the conduct of the other. It was reasonable that the discipline imposed in the two cases should, at some point, be considered by this court in tandem.11
¶ 88. Thus, on July 30, 2008, soon after the Humphrey oral argument in this court, the court, on its own motion, issued a written order holding Attorney Humphrey's case in abeyance, anticipating that the Sommers case would be here soon for oral argument.12 No justice dissented from this order. Justice Prosser belatedly objects today, some three and one-half years later.13
¶ 89. Holding the Humphrey matter for the Sommers matter was the sound, sensible thing to do at the time. No one anticipated that the Sommers case would take three years before it came here for oral argument. Nothing irregular or sinister here. Nothing to undermine confidence in the lawyer regulation system, including the actions of this court.
*562¶ 90. Since the Sommers case came to this court with oral argument on November 3, 2010, it has taken about 16 months for this court to release the Sommers and Humphrey decisions. This is too long. Decisions in non-discipline cases in which oral argument was held in November 2010, as was the Sommers case, were released before the end of July 2011.14 We do not have time lines for preparing, circulating, and releasing decisions in discipline cases (as we do for decisions in non-discipline cases). We should. I shall continue to urge the court to set reasonable time lines for all matters that come to this court.
B
¶ 91. The concurrence/dissent asserts that the court should have separated the Sommers and Humphrey cases, but the concurrence/dissent does not tell the full story. The cases were in fact handled separately, even in this court.
¶ 92. Each case had its own OLR complaint; its own files and records; its own referee (as a result of Sommers' request for substitution); its own report by its own referee; its own set of briefs in this court; and its own oral argument here. The court deliberated on each case separately. Separate opinions were written and considered in each case, but then the court stepped back to assess the discipline to be imposed on each lawyer.15
¶ 93. Although the concurrence/dissent forcefully argues that the two cases be kept separate, as they were, it simultaneously suggests that Attorney Som*563mers' request that a new referee be substituted for the Humphrey referee who was originally assigned as referee to the Sommers case was irregular and worked to Humphrey's disadvantage.16
¶ 94. A lawyer has the right to ask that the named referee be substituted. See SCR 22.13(4). This right has been exercised in other cases. Nothing irregular about a substitute referee here.
¶ 95. Indeed the court granted Attorney Sommers' request that the referee in the Humphrey case not be the referee in the Sommers case, in part so that the two cases would be separate.
C
¶ 96. The concurrence/dissent recounts at length the change in the membership of the court while the Humphrey case has been pending. It is viewed as an "irregularity." That a justice retires, resigns, is defeated in election, dies, or recuses himself or herself while a case is pending is not unusual or irregular.17 Only justices who participate in a case from its beginning ordinarily participate in the case through the end. A justice who declines to participate in a case cannot be forced to participate.
¶ 97. That only five justices participate in a matter before this court is not an everyday occurrence, but it is not an irregularity. A five-justice decision, with two justices not participating after being given the opportunity to do so, is valid.
*564¶ 98. Nothing irregular or sinister here. Nothing unfair to Humphrey or Sommers. Nothing to undermine confidence in the lawyer regulation system, including the actions of this court.
¶ 99. On December 14, 2009, Attorney Humphrey requested re-argument in this court, urging that the case should be reargued because of the change in the composition of the court.18 Almost immediately thereafter, on January 12, 2010, the court entered a written order, unanimously holding Humphrey's motion for re-argument in abeyance. No justice dissented from this order.
¶ 100. Nevertheless, with the benefit of hindsight, the concurrence/dissent asserts that the court should have granted Attorney Humphrey's motion for reargument.19 Yet, noticeably, the concurrence/dissent does not request reargument even today.20
D
¶ 101. The concurrence/dissent records, as an "irregularity," that the per curiam opinion dismisses the third count of the complaint against Humphrey while imposing discipline in excess of that which the referee recommended.21
¶ 102. The concurrence/dissent asserts that it is a "spectacle" that the per curiam opinion fails to accept the referee's recommendation to discipline Attorney Humphrey with a public reprimand while dismissing count three.22
*565¶ 103. The third count implicates Attorney Humphrey in not timely providing information he was required to give Attorney Sommers.23
¶ 104. What the concurrence/dissent does not reveal is that count three was dismissed on a procedural ground even though the count appears to have potential merit. Moreover, the remaining two counts of misrepresentation are more than sufficient to support a 30-day suspension.
¶ 105. The per curiam opinion dismisses the third count on the ground that the referee erred in granting summary judgment on this count without holding an evidentiary hearing. The court could have remanded the third court to the referee to hold an evidentiary hearing to determine the merits of this count. A remand causes delay and would have increased the costs incurred by Attorney Humphrey.
¶ 106. Instead, the court exercised its discretion to dismiss the count. The per curiam opinion does not, however, condone the time it took Attorney Humphrey to disclose an important witness statement to Attorney Sommers.24
¶ 107. Dismissal of count three appears to be advantageous to Attorney Humphrey.
¶ 108. Dismissal of a count happens with some frequency in lawyer discipline cases. The referee and the court are doing their respective jobs in carefully checking that the Office of Lawyer Regulation proves each count. Nothing irregular or sinister here. Nothing unfair to Humphrey. Nothing to undermine confidence in the lawyer regulation system, including the actions of this court.
*566¶ 109. The court considers carefully a referee's recommendation about discipline but modifies a referee's recommendation as too light or too harsh with some frequency. Both the referee and court are doing their respective jobs: The referee is to recommend; the court is to decide.
¶ 110. The referee acknowledged that "making a proper recommendation in this case [is] difficult."25 The referee recorded favorable comments about Attorney Humphrey and his career and then concluded that Attorney Humphrey violated the Rules of Professional Conduct and that his conduct before the referee suggested "a deliberate attempt not to cooperate in an effort to find the truth. It must be noted that absolutely no contrition was expressed by [Attorney Humphrey]. With all this in mind the least I [the referee] can recommend is a public reprimand."26
¶ 111. Many referees oversee the numerous discipline cases. The court's careful review of each referee's recommendation for discipline and the court's careful exercise of its responsibility to impose discipline can bring consistency in discipline from one lawyer discipline case to another. No "spectacle" here.
E
¶ 112. The concurrence/dissent criticizes the court for not pursuing a defense that Attorney Humphrey claimed, namely that the trial court rescinded the statement that Attorney Humphrey clearly misled the *567trial court.27 There is no documentary evidence showing a change by the trial court. At Attorney Humphrey's deposition he said, "[W]hen he [the trial judge] sort of backtracked, later on and he took it back, he made— you know, says disparaging things." It was Attorney Humphrey's obligation, not the referee's or this court's, to pursue Humphrey's assertions in his defense and produce evidence to support the defense.28 Nothing irregular or sinister here. Nothing unfair to Humphrey. Nothing to undermine confidence in the lawyer regulation system, including the actions of this court.
¶ 113. In sum, the charge of such "irregularities" that the procedure used and decision are "unfair to attorney [Humphrey] and seriously undermine [] the confidence in the lawyer regulation system, especially the actions of this court" is not proven. None of the purported irregularities holds up under scrutiny.
¶ 114. Instead, the concurrence/dissent expresses one justice's opinion about Attorney Humphrey's credibility and the facts. It expresses frustration that, as a matter of law, the concurrence/dissent must defer to the referee's assessment of Humphrey's credibility and findings of fact, although the concurrence/dissent nevertheless attempts to retry credibility.29
¶ 115. It turns out that the concurrence/dissent amounts to "nothing more than a disagreement among justices about whether an attorney should receive a *568public reprimand or a relatively brief suspension,"30 an issue that the concurrence/dissent writes is worthy of "little" discussion.31
¶ 116. I turn to the issue of discipline.
II
¶ 117. The 30-day suspension is "unprecedented," proclaims the concurrence/dissent.32
¶ 118. A 30-day suspension is "unprecedented" only in the sense that in recent years, unlike in years past, the minimum suspension the court ordinarily imposes is 60 days. In the present case the court, like the referee, struggled mightily on the question of discipline. The court decided a public reprimand was too light and a 60-day suspension too severe. The court's imposing an "unprecedented" 30-day suspension probably has worked in Attorney Humphrey's favor.
¶ 119. In spite of the storm and fury and nasty insinuations about the court's actions, when all is said and done, it turns out that the concurrence/dissent disagrees merely with the imposition of a 30-day suspension. Yet, at the same time the concurrence/dissent concludes that the decision whether to impose a public reprimand or a suspension is an issue worthy of "little" discussion.33
¶ 120. Here again, I must disagree with the concurrence/dissent. I think the discipline to be imposed is worthy of a lot of discussion and very careful thought. The nature of the discipline has significant *569consequences. There is a big difference to the disciplined attorney, to the public, to the bench, and to the bar between a public reprimand and a suspension of any length.34
¶ 121. The court is concerned about the effect of discipline cases on the litigants involved, on the bar, on the bench, on the public, and on the public's trust and confidence in the legal and judicial system. For these reasons, the court struggles to impose what it views as the appropriate discipline in each case and tries especially hard to reach unanimous decisions in discipline cases.
¶ 122. The concurrence/dissent inveighs against imposing full costs of the proceeding against Attorney Humphrey.35 The court carefully considers costs in each case and is fully cognizant of the effect of the imposition of all or a portion of the costs on the attorney charged or on all the attorneys of the state who foot the bill for the lawyer discipline system.36 The concurrence/dissent protests about costs but does not say what costs it would impose.
¶ 123. What discipline should the court impose on a lawyer who violates the Rules of Professional Conduct in representing the State in a criminal case?
*570¶ 124. The case: Adam Raisbeck, a 17-year-old driver, was in a single-car roll-over accident. One passenger was killed. Another was injured. No drugs or alcohol were involved. In essence, the legal question was whether Adam Raisbeck would be held criminally liable for driving too fast.
¶ 125. Attorney Humphrey is a long-time experienced assistant district attorney. What explains his conduct? The concurrence/dissent ruminates, "it is difficult ... to imagine what would have motivated an experienced prosecutor to promptly turn over 84 pages of discovery material to the defendant but later insist to a circuit judge that he also turned over or actually supplied accident scene photographs in March when he obviously did not."37
¶ 126. The referee in the Humphrey discipline proceeding answers: "Sommers and Humphrey apparently had a prior unpleasant history and it appears that Humphrey determined not to be any more cooperative with Sommers than absolutely necessary."38 Attorney Humphrey "may have been driven ... by over work or his apparent intense dislike of his opponent."39
¶ 127. The justices have struggled mightily, perhaps too mightily, and for far too long, to decide the merits of the charge and the appropriate discipline. The discipline had to fit the offense, considering the attorney's conduct and the mitigating and aggravating circumstances, and considering the effect on the bar, *571the bench, and the public, and trying to ensure fair, effective judicial and legal proceedings that produce fair, just results.
¶ 128. Each lawyer discipline case, including the Humphrey and Sommers matters, presents a sad and difficult story about lawyers and clients. The Office of Lawyer Regulation, the Preliminary Review Committee, the referees, and the court understand this and take their respective roles very seriously — as they should.
¶ 129. The lawyer discipline system, like any system, has its strong and weak spots, and aspects of the system can be commended and criticized. The handling of any particular case, including the Humphrey case, is also subject to both approbation and disapproval.
¶ 130. There is no question that the case took too long. But the handling of the Humphrey discipline case was not "irregular," in the sense that the concurrence/ dissent claims, so as to be "unfair to the Attorney [Humphrey] and seriously undermine the confidence in the lawyer regulation system, especially the actions of this court." No such charge should be made in the present case to attack the integrity of the lawyer regulation system or the justices joining the per curiam opinion.
¶ 131. For the reasons set forth, I join the per curiam and write separately.
Indeed the court and the Board of Administrative Oversight have often examined and reexamined aspects of the lawyer discipline system to improve it. The chair of the Board of Administrative Oversight, at my request, appointed a committee that reviewed OLR procedures and has offered suggestions for improvement.
"[T]he procedures followed in this case, especially the long delay in this court, are so irregular that they undermine confidence in the lawyer regulation system." Concurrence/ dissent, ¶ 159.
Per curiam, ¶ 51. See also per curiam, ¶ 58.
Concurrence/dissent, ¶ 143. See also concurrence/dissent, ¶¶ 144-154.
Concurrence/dissent, ¶ 154.
Concurrence/dissent, ¶ 132.
Id.
Concurrence/dissent, ¶ 156.
Concurrence/dissent, ¶ 141.
Here is an abbreviated time line:
(1) The Incident
9/1/01: Adam Raisbeck's car rolls over.
4/21/05: Adam Raisbeck trial; he is acquitted.*
(2) OLR Proceedings
11/16/06: OLR files Humphrey complaint.**
11/17/06: OLR files Sommers complaint.
(3) Referee Proceedings
8/3/07: Humphrey referee files report and recommendation with Supreme Court.
10/16/09: Sommers referee files report and recommendation with Supreme Court.
(4) Supreme Court Proceedings
4/10/08: Humphrey oral argument before Supreme Court.
7/30/08: Supreme Court order holding the Humphrey case in abeyance.
11/3/10: Sommers oral argument before Supreme Court.
3/30/12: Sommers and Humphrey decisions released by Supreme Court.
* Ordinarily OLR does not investigate or file a complaint during the pendency of a court proceeding during which the incident arises.
*561**Our goal has been that in most cases a complaint be filed within one year after the investigation begins. We are not there yet. The time, however, of the OLR proceedings in the present case does not account for the bulk of the time that has elapsed in this disciplinary proceeding.
Per curiam, ¶ 4. Neither the majority nor I use the Referee's Findings and Recommendations of Discipline in the Sommers case or the record in the Sommers case in deciding the Humphrey case.
Per curiam, ¶ 45 n.6.
Concurrence/dissent, ¶ 139.
Decisions in non-discipline cases in which oral argument was held between September 1, 2010, and April 30, 2011, were released before the end of July 2011.
Per curiam, ¶ 4.
Concurrence/dissent, ¶ 136.
The disciplinary proceeding against Attorney Sommers is being resolved in a separate opinion released today. See In re Disciplinary Proceedings Against Sommers, 2012 WI 33, _ Wis. 2d_,_N.W.2d_.
Concurrence/dissent, ¶¶ 137-138.
Per curiam, ¶ 45 n.6.
Concurrence/dissent, ¶ 140.
Per curiam, ¶ 45 n.6.
Concurrence/dissent, ¶ 141. See per curiam, ¶¶ 59-62.
Concurrence/dissent, ¶ 141.
See per curiam, ¶¶ 31-44, 48, 59-62.
Per curiam, ¶ 62.
Referee's Findings of Fact and Recommendation at 8. See also per curiam, ¶ 63.
Referee's Findings of Fact and Recommendation at 9.
Concurrence/dissent, ¶ 156.
Per curiam, ¶ 23 n.2.
The referee heard the testimony, saw the witnesses, and gauged their credibility. A reviewing court must defer to the factual findings and the credibility determination of the trier of facts because the trier is in a better position than is a reviewing court to determine the facts and weigh the credibility of a witness.
Concurrence/dissent, ¶ 132.
Id
Concurrence/dissent, ¶ 141.
Id., ¶ 132.
See SCR 22.26. A lawyer's activities are severely curtailed on a suspension. A lawyer who is suspended has to notify clients and courts of the suspension and make all arrangements for the temporary or permanent closing or winding up of the attorney's practice.
Concurrence/dissent, ¶ 142.
See SCR 22.24 (governing costs). See Justice Prosser's concurrence/dissent and my concurrence discussing imposition of costs in discipline cases in In re Disciplinary Proceedings Against Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376.
Concurrence/dissent, ¶ 152.
Referee's Findings of Fact and Recommendation, Finding of Fact 3.
Referee's Findings of Fact and Recommendation at 8. See also per curiam, ¶ 63.