¶ 132. (concurring in part, dissenting in part). I respectfully dissent from the level of discipline imposed by the court. If this case involved nothing more than a disagreement among justices about whether an attorney should receive a public reprimand or a relatively brief suspension, there would be little to discuss. But the case involves much more. In *572my view, the handling of this 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.
¶ 133. The Office of Lawyer Regulation (OLR) filed three counts of professional misconduct against Attorney Paul W Humphrey in November 2006. The three counts all relate to Attorney Humphrey's conduct as a Dane County Assistant District Attorney in the State's prosecution of Adam Raisbeck for a traffic homicide. The three counts read as follows:
1. By averring in an affidavit filed with Judge [Paul] Higginbotham on May 22, 2002, "That over two months ago, the State . . . made the photographs available to the defendant" and by continuing to maintain that factual position before Judge Higginbotham during a hearing held on June 7, 2002, when in fact he knew that he had informed the defense how to obtain the accident scene photographs less than one month prior, and that the defense did not actually have the photographs as of the morning prior to May 22, 2002, Humphrey engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).
2. By indicating to Judge Higginbotham during a hearing held on August 22, 2002, that he did not know where the State's accident scene phptos were, and by failing to affirmatively disclose information concerning the location of the State's photos, when in fact he possessed a complete set of the photos at the time of the hearing, Humphrey knowingly made a false statement of fact to a tribunal in violation of SCR 20:3.3(a)(1), and engaged in conduct involving dishonesty, fraud, deceit or misrepresentation, in violation of SCR 20:8.4(c).
3. By failing to turn over to the defense until January 7, 2004, an October 21, 2003, witness state*573ment concerning incriminating declarations that the defendant allegedly made to Witness [Kevin] McCoy following the accident, despite having been served on March 12, 2002, with a valid defense discovery request for "a written summary of all oral statements of the defendant which the State plans to use in the course of the trial and the names of witnesses to the defendant's oral statements," Humphrey did, in pretrial procedure, fail to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party, in violation of SCR 20:3.4(d).
¶ 134. At first, the prosecution of Attorney Humphrey proceeded normally. Referee Russell Hanson was appointed to hear the case. Referee Hanson entered summary judgment on Count Three on June 25, 2007. He denied Humphrey's motion for reconsideration on July 10, then heard two days of evidence. He issued his decision on August 2, 2007 (less than a year after the case was filed), finding that OLR had met its burden on all three counts and recommending that Attorney Humphrey receive a public reprimand. This was the same level of discipline sought by the OLR.
¶ 135. Humphrey appealed, and this court heard oral argument in his case on April 10, 2008.
¶ 136. These facts tell only part of the story. Attorney Humphrey's case has been linked to matters involving Attorney Joseph Sommers from the beginning of the Raisbeck prosecution, including OLR's subsequent disciplinary proceedings against Attorney Sommers. In virtually every respect, this linkage has worked to Attorney Humphrey's detriment. Attorney Sommers testified against Attorney Humphrey at Humphrey's evidentiary hearing, and then, after Referee Hanson issued a decision in the Humphrey matter, *574Attorney Sommers succeeded in removing Referee Hanson from Sommers' own case.
¶ 137. When Attorney Humphrey's case was argued on April 10, 2008, Justice Annette Kingsland Ziegler did not participate. She did not participate because Attorney Sommers had been a candidate for the supreme court against Justice Ziegler in 2007. Justice Ziegler apparently decided that if she should not sit in the Sommers case, she should not sit in the Humphrey case either. This reduced the size of Humphrey's court from seven to six.
¶ 138. Justice Louis Butler did sit in the Humphrey case, but when this court decided to hold the release of any decision on Attorney Humphrey until reaching a decision on Attorney Sommers, it effectively knocked the departing Justice Butler off the case and reduced the size of the court to five.
¶ 139. The decision to hold Attorney Humphrey's case in abeyance had another unfortunate effect: Attorney Humphrey was left twisting in the wind for three and one-half years while this court struggled to resolve the intractable Sommers matter.
¶ 140. Attorney Humphrey played no part in this delay. He simply paid the price for it. The court should have separated the two cases and granted Humphrey's motion for reargument.
¶ 141. Beyond the unseemly delay and its adverse effect on Attorney Humphrey, this court has created the spectacle of invalidating one of the three counts against Attorney Humphrey but nonetheless increasing his discipline from a proposed public reprimand to an unprecedented 30-day suspension (in a case not involving reciprocal discipline). See SCR 22.22(3).
¶ 142. In addition, Attorney Humphrey is required to pay the full costs of the prosecution against *575him, including OLR's costs in this appeal, even though OLR did not seek increased discipline on appeal and even though OLR lost one of its three counts. The result in this court will send a chilling message to attorneys in discipline cases who may wish to defend their position on appeal.
¶ 143. But there is more. The two remaining counts, 1 and 2, involve semantic disputes about what Attorney Humphrey meant when he made certain representations to the circuit court.
¶ 144. There is no dispute that Attorney Sommers sought accident scene photographs from the State in the Raisbeck case. His subpoena for these photographs was quashed by the circuit court on grounds that "discovery" of the photographs before the arraignment was premature. After the arraignment, the defense was entitled to see the photographs and to acquire its own set.
¶ 145. It does not follow, however, that the State was required to give the defense its own set of 8 by 10 photographs. The referee made no such finding and the majority opinion does not assert that that is a requirement of the law.
¶ 146. This case would be simple if Attorney Humphrey somehow prevented Attorney Sommers from seeing or acquiring a complete set of accident scene photographs, but that is not the issue.
¶ 147. The facts supporting Count 1 are set out in ¶¶ 7-22 of the majority opinion. On April 25, 2002, Attorney Humphrey sent a letter to Attorney Sommers that said:
You had requested the photographs taken in this case. As I mentioned, I had loaned them out for a Crash Reconstruction analyst to look at in the course of their *576investigation. There are several ways for you to access the photographs. If you are willing to stipulate to their foundation, and agree to return them within a reasonable time, I can send them to you. If you want your own copies, you are welcome to contact the [DCSO] [Dane County Sheriffs Office] and order them. They will then print them up and have a bill ready for you to pay when they are picked up. If you just want to look at them, then call me up and set up a time to come in to my office and look at them. I will have them available at the front desk.
¶ 148. On May 2 Humphrey sent Sommers a second letter that said:
At your recent request for your own copies of all the photos, I contacted the Court Officer of the DCSO. Here's what you need to do. Call Lt. Baglama at. .. and request the photos. You will need the Agency Case Number which is 01-53163. They will apparently make the copies and have them ready to pick up upon payment of the invoice.
¶ 149. Both of these letters allude to the established procedure for a defendant to obtain his own set of case-related photographs after arraignment. The majority opinion acknowledges Attorney Humphrey's reliance on this procedure:
Attorney Humphrey asserts the usual procedure for defense counsel to obtain a set of crime scene photographs is for the defense attorney to write a letter to the district attorney requesting authorization for the sheriffs department, as the custodian of the negatives, to release a set of photographs to the defense.
Attorney Humphrey maintains Sommers was fully aware of the typical protocol for obtaining accident *577scene photos. Attorney Humphrey includes in his submissions a form letter that is often used by defense counsel to make such requests.
Majority op., ¶¶ 10, 19.
¶ 150. Attorney Humphrey filed an affidavit with the circuit court on May 22, 2002, which stated in part: "That over two months ago, the State provided over 84 pages of discovery materials, made the photographs available to the defendant, and provided the scale diagram." (Emphasis added.)
¶ 151. The circuit court and the referee both .read the phrase "made the photographs available to the defendant" as meaning that the State gave the defendant the photographs, which Humphrey did not do. They rejected an alternative interpretation of the phrase, that a set of photographs was accessible to the defendant after the arraignment in March, if and when Attorney Sommers sought the photographs by utilizing the established protocol.
¶ 152. It is difficult for this writer 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. It is much easier to accept that Attorney Humphrey's statements were meant to convey a different proposition. Of course, the referee decided otherwise.
¶ 153. The court is constrained by a very rigorous standard of review with respect to the facts found by a referee in an attorney discipline case. I wrote about this standard several years ago:
I respect and appreciate the work of the court's appointed referees in the Lawyer Regulation System. *578Their findings of fact are entitled to great deference and should not be disturbed unless they are clearly erroneous. For the court to adopt a different standard of review would plunge us into a fact-finding role to which we are not well suited.
Because it is important to honor the standard of review, I concur in the decision of the court. I write separately, however, to emphasize that if I had a free hand, I would decide the case differently.
OLR v. Paget, 2003 WI 26, ¶¶ 19-20, 260 Wis. 2d 604, 660 N.W.2d 255 (Prosser, J., concurring).
¶ 154. I concur here as well, with deep reservations, because I am not prepared to assert that the referee's "facts" are clearly erroneous.
¶ 155. It should be noted, however, that other attorneys in the district attorney's office supported Attorney Humphrey's explanation and position. For example, then-Deputy District Attorney Judy Schwaemle testified at Humphrey's hearing that "it is the policy of the Dane County DA's office... to make photographs available to defense counsel immediately after arraignment." (Emphasis added.)
¶ 156. The majority could have removed my reservations about Count One and eviscerated Attorney Humphrey in the process by demolishing his contention "that the referee's report fails to note the district attorney later asked the trial court to rescind this statement [that Attorney Humphrey 'clearly misled the court on that issue']" and, more important, that "the trial court agreed." See majority op., ¶ 23. If the circuit court actually changed its evaluation of Attorney Humphrey's representations, the validity of Count One would be undermined. The majority appears determined not to pursue such a tough question.
*579¶ 157. The reservations I have about Count One also apply to Count Two. Why would Attorney Humphrey assert, suggest, or imply that he did not have a set of accident scene photographs in his office when he had previously admitted otherwise in writing {see ¶ 147, supra), when he brought two photos with him to court, and when he had already been severely criticized by the circuit court over his handling of the photographs? I don't think he did. More plausible to the writer is that Attorney Humphrey was speaking about Deputy Sewell's set of accident scene photographs, not his own set. Again, the referee decided otherwise.
¶ 158. The majority is not only comfortable with these determinations, but also willing to create unprecedented discipline to deal with them.
¶ 159. I believe a suspension of Attorney Humphrey is unwarranted and unfair and that the procedures followed in this case, especially the long delay in this court, are so irregular that they undermine confidence in the lawyer regulation system. Thus, with respect to the sanction, I respectfully but strongly dissent.