Office of Lawyer Regulation v. Victor M. Arellano

2013 WI 24

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP443-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against
Victor M. Arellano, Attorney at Law:

Office of Lawyer Regulation,
Complainant,
v.
Victor M. Arellano,
Respondent.

DISCIPLINARY PROCEEDINGS AGAINST ARELLANO

OPINION FILED: March 21, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING: Abrahamson, C.J., Gableman, J., did not
participate.

ATTORNEYS:
 2013 WI 24
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP443-D

STATE OF WISCONSIN : IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Victor M. Arellano, Attorney at Law:

Office of Lawyer Regulation, FILED
Complainant,
MAR 21, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Victor M. Arellano,

Respondent.

ATTORNEY disciplinary proceeding. Attorney publicly

reprimanded.

¶1 PER CURIAM. Pending before the court is a report and

recommendation filed by Referee John B. Murphy, recommending the
court publicly reprimand Attorney Victor M. Arellano for two

counts of professional misconduct. No appeal has been filed so
the court's review proceeds pursuant to SCR 22.17(2).1 Costs

1
SCR 22.17(2) states:

If no appeal is filed timely, the supreme court
shall review the referee's report; adopt, reject or
 No. 2011AP443-D

totaling $40,960.49 as of August 6, 2012, are disputed.2 We

conclude that the referee's findings of fact are supported by

satisfactory and convincing evidence and we adopt his

conclusions of law. We agree that the appropriate discipline

for Attorney Arellano's misconduct is a public reprimand. We

further conclude that 25 percent of the costs of the proceeding

should be assessed against Attorney Arellano.

¶2 Attorney Arellano was admitted to the practice of law

in Wisconsin on September 27, 1985. He practices in Middleton,

Wisconsin. He has one previous private reprimand dating from

2008.

¶3 On February 28, 2011, the OLR filed a complaint

alleging 14 counts of misconduct based on events spanning from

1991 to 2007. The OLR initiated this proceeding after four

female former clients filed grievances against Attorney

Arellano, each alleging professional misconduct, including

claims that Attorney Arellano engaged in improper sexual

relations with them. The OLR sought revocation of Attorney
Arellano's license.

¶4 Referee Murphy was appointed on April 18, 2011. Over
the ensuing year, nine of the 14 counts were dismissed before

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
The Office of Lawyer Regulation (OLR) does not seek
restitution and we accede to the OLR's judgment on this issue.

2
 No. 2011AP443-D

the evidentiary hearing.3 In January 2012 the referee conducted

a 2 1/2 day evidentiary proceeding on the remaining five counts

of alleged misconduct.4 The referee subsequently dismissed Count

One in his report filed February 3, 2012, and on May 25, 2012,

filed a report concluding that Attorney Arellano committed two

counts of professional misconduct and dismissed two counts.5 The

parties filed briefs on the issue of sanctions, and on July 16,

2012, the referee filed his final order entitled "Recommendation

as to Appropriate Discipline" recommending that Attorney

Arellano be publicly reprimanded for his misconduct.

¶5 This court will adopt a referee's findings of fact

unless they are clearly erroneous. Conclusions of law are

reviewed de novo. See In re Disciplinary Proceedings Against

3
Attorney Arellano filed a motion for partial summary
judgment on August 26, 2011, seeking summary judgment on Counts
One, Seven, Eleven, Twelve, Thirteen, and Fourteen. The OLR
conceded it could not prove and dismissed Counts Thirteen and
Fourteen. On November 15, 2011, the referee filed a decision
reserving the issue regarding Count One, denying the motion
regarding Counts Seven and Twelve, and granting to motion as to
Count Eleven. On December 8, 2011, the parties filed a
stipulation and order dismissing Counts Two, Three, Four, and
Six of the complaint. This left seven counts.
4
At the start of the evidentiary hearing on January 3,
2012, the referee granted the OLR's motion to dismiss Count
Seven. On the third day of the hearing, the referee granted
Attorney Arellano's unopposed motion to dismiss Count Twelve,
leaving five counts outstanding.
5
On February 3, 2012, following the evidentiary hearing,
the referee filed a decision dismissing Count One of the
complaint on statute of limitations grounds. On May 25, 2012,
the referee filed a decision dismissing Counts Five and Ten of
the complaint and concluding Attorney Arellano committed the
misconduct alleged in Counts Eight and Nine of the complaint.

3
 No. 2011AP443-D

Eisenberg, 2004 WI 14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747.

Here, the OLR acceded to the dismissal of six counts (Counts

Two, Three, Four, Six, Thirteen, and Fourteen) so we need not

review these. They will be mentioned only for context.

N.S.M.: Counts One through Eight

¶6 The first eight counts of misconduct were filed in

connection with the matter of N.S.M. With respect to the

allegations involving N.S.M., the referee found that Attorney

Arellano engaged only in the misconduct alleged in Count Eight;

the OLR agreed to dismiss Counts Two, Three, Four, and Six. The

referee recommended dismissal of Counts One, Five, and Seven.

¶7 The matter will be briefly summarized. On or about

August 1, 1996, N.S.M. retained Attorney Arellano to represent

her in a divorce. Attorney Arellano and N.S.M. quickly

commenced a relationship and eventually lived together for

several years. Their relationship ended, acrimoniously, in

2005.

¶8 Following the breakup, N.S.M. alleged that Attorney

Arellano disparaged and defamed her in telephone calls to her
father, e-mails to her sister and her cousin, in correspondence

to some of her employers, and he reported to the sheriff that
she had committed forgery.6 N.S.M. also alleged that Attorney

Arellano provided private information to her former husband in

6
In July 2006 N.S.M. was charged with 16 criminal counts
including forgery, writing bad checks, and failure to file tax
returns. On June 11, 2007, she entered no contest pleas to a
felony forgery charge and a misdemeanor charge of issuing a
worthless check.

4
 No. 2011AP443-D

an effort to adversely affect her custody of the minor child

from the marriage. Attorney Arellano, in turn, alleged that

N.S.M. took large sums of money from him.

¶9 Count One of the OLR's complaint alleged that by

commencing a sexual relationship with N.S.M. after she hired him

to represent her in a divorce in August 1996, Attorney Arellano

violated former SCR 20:1.8(k)(1) and (2), effective prior to

July 1, 2007. The referee dismissed Count One as exceeding the

permissible statute of limitations in an order filed February 3,

2012. The OLR does not appeal this ruling. We accept the

referee's findings and conclusions on this charge.

¶10 Count Two alleged that by having at least 152

telephone conversations with N.S.M.'s former husband and/or her

former husband's wife subsequent to Attorney Arellano's

representation of N.S.M., when some of those conversations

involved ongoing proceedings relating to a custody dispute,

Attorney Arellano violated former SCR 20:1.9(b), effective prior

to July 1, 2007, and current SCR 20:1.9(c).
¶11 On December 8, 2011, the OLR stipulated to the

dismissal of Count Two, admitting it could not prove the
information was "related" to Attorney Arellano's former

representation of N.S.M.
¶12 Count Three of the complaint alleged that by providing

N.S.M.'s former husband with a copy of at least one of N.S.M.'s
bank statements, for the purpose of indicating that N.S.M. had

filed a false financial disclosure statement in the post-divorce

matters, Attorney Arellano violated former SCR 20:1.9(b). The
5
 No. 2011AP443-D

OLR stipulated to the dismissal of this count on December 8,

2011.

¶13 Count Four of the complaint alleged that by giving

N.S.M.'s former husband a May 4, 2006 letter with enclosures,

Attorney Arellano violated former SCR 20:1.9(b). The OLR

stipulated to the dismissal of this count on December 8, 2011.

¶14 Count Five of the complaint alleged that by providing

the guardian ad litem for N.S.M.'s minor child with 73 proposed

requests to admit pertaining to N.S.M. for use in the post-

divorce matters, Attorney Arellano violated former

SCR 20:1.9(b).

¶15 The referee conducted a hearing on Count Five. After

the hearing, the referee recommended dismissal of the count

stating, "While [Attorney] Arellano's use of this information

was clearly meant to harm [N.S.M.'s] chances in her custody

dispute and was, therefore, inappropriate, mean spirited and

childish, its use does not constitute a violation of the Rule."

The OLR did not appeal this decision, and we accept the
referee's findings and conclusions on this charge.

¶16 Count Six of the complaint alleged that by providing
the Madison Police Department, through his attorney, a

Confidential Financial Disclosure Statement and an affidavit
with N.S.M.'s son's school progress report, both of which had

been filed by N.S.M. in post-divorce matters in which Attorney
Arellano had previously represented her, and by giving N.S.M.'s

bank statements to the sheriff's department and police

department, Attorney Arellano violated former SCR 20:1.9(b).
6
 No. 2011AP443-D

The OLR stipulated to the dismissal of this count on December 8,

2011.

¶17 Count Seven alleged that by sending a disparaging e-

mail about N.S.M. to her sister and her cousin using his law

firm's equipment and the services of his paralegal, by

contacting N.S.M.'s employer to make negative allegations about

her, by repeatedly contacting a co-worker of N.S.M.'s to

disparage N.S.M., by delivering to the co-worker's home in a law

firm envelope documents intended to disparage N.S.M., by making

at least 186 telephone calls to N.S.M. in the course of one day,

and by telephoning N.S.M.'s father in the middle of the night in

August 2005 to insult N.S.M. in a crude and offensive manner,

including describing sexual acts, Attorney Arellano violated

SCR 40.15.

¶18 The referee granted the OLR's motion to dismiss this

charge at the start of the evidentiary hearing on January 3,

2012.

¶19 Count Eight of the complaint alleged that by making
misrepresentations to the OLR and to its District 9 Committee,

or members thereof, in the course of the OLR's investigation of
N.S.M.'s grievance, Attorney Arellano violated SCR 22.03(6)7 via

7
SCR 22.03(6) provides:

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
 No. 2011AP443-D

SCR 20:8.4(h).8 The referee concluded that Attorney Arellano

committed this misconduct.

¶20 The referee noted that obstructing the work of the

District Committee by his misleading and false statements is a

serious violation. The referee observed that the "ability of

the Supreme Court to properly monitor and enforce the Rules of

Professional Conduct through its investigative resources

requires that attorneys under investigation be absolutely

truthful in their response to inquiries." The referee observed

that Attorney Arellano was an experienced attorney who had been

previously investigated in another matter unrelated to this

case. He knew the rules and his obligation to be truthful even

when not under oath. In spite of this knowledge, Attorney

Arellano chose to lie and to mislead the District Committee and,

in doing so, he undermined the integrity of both the lawyer

regulation system and the legal profession itself.

¶21 Thus, the referee found, and the record supports the

finding, that Attorney Arellano was, for a time, N.S.M.'s lawyer
and he and N.S.M. subsequently had an acrimonious break-up. The

record discloses that both individuals engaged in behavior that
was, to use the referee's words, "inappropriate, mean spirited

and childish." Ultimately, there was insufficient evidence to
substantiate the allegations in Counts One through Seven of the

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); . . . ."

8
 No. 2011AP443-D

complaint. The referee concluded that Attorney Arellano

committed the misconduct alleged in Count Eight by misleading

the OLR and the District Committee about the nature of his

representation of N.S.M. We accept these findings and

conclusions.

M.F.: Counts Nine and Ten

¶22 On or about October 11, 2000, M.F. filed a Charge of

Discrimination (Discrimination Charge) with the Equal

Opportunity Employment Commission and the Equal Rights Division

of the Wisconsin Department of Workforce Development against her

former employer, the City of Milwaukee Mayor's Office (City).

M.F. alleged that between 1995 and 2000, then-City of Milwaukee

Mayor John Norquist unlawfully harassed M.F.

¶23 At or about the time M.F. filed the Discrimination

Charge, Attorney Arellano initiated contact with M.F., calling

her telephone number and leaving voicemail messages. Attorney

Arellano solicited employment as her lawyer in the

discrimination matter.

¶24 On or about October 23, 2000, M.F. retained Attorney
Arellano and his then-firm, Lawton & Cates, S.C., to represent

her in the Discrimination Charge against the City. The OLR
alleged that following commencement of their attorney-client

relationship, Attorney Arellano and M.F. commenced a sexual
relationship.

9
 No. 2011AP443-D

¶25 Count Nine of the OLR's complaint alleged that

Attorney Arellano violated former SCR 20:7.3(c),9 by initiating

contact with M.F. and making one or more unsolicited telephone

calls to her for the purpose of inducing her to hire him to

represent her in the Discrimination Charge against the City.

Following the hearing, the referee concluded Attorney Arellano

committed this misconduct.

¶26 The referee found that M.F. did not request the

contact. The American Bar Association (ABA) Comment regarding

SCR 20:7.3 in the Wisconsin Rules of Professional Conduct for

Attorneys makes clear that the purpose of SCR 20:7.3 is to

prevent a potential client from being pressured into entering

into a representation agreement with an attorney. The Comment

9
Former SCR 20:7.3(c), effective prior to July 1, 2007,
provided:

A lawyer shall not initiate personal contact,
including telephone contact, with a prospective client
for the purpose of obtaining professional employment
except in the following circumstances and subject to
the requirements of Rule 7.1 and paragraph (d):

(1) If the prospective client is a close friend,
relative or former client, or one whom the lawyer
reasonably believes to be a client.

(2) Under the auspices of a public or charitable
legal services organization.

(3) Under the auspices of a bona fide political,
social, civic, fraternal, employee or trade
organization whose purposes include but are not
limited to providing or recommending legal services,
if the legal services are related to the principal
purposes of the organization.

10
 No. 2011AP443-D

cites the unequal nature of the relationship between the

potential client and the lawyer as being fertile ground for the

application of undue pressure upon the client.

¶27 The referee noted that while it is true that Attorney

Arellano did contact M.F., the contact was by telephone and not

in person. Moreover, Attorney Arellano told M.F. that if she

wanted to discuss the case further, she must come to Madison

from Milwaukee and meet at Attorney Arellano's law office. A

number of days after the call, M.F. did go to Madison, did meet

with Attorney Arellano, and did sign a retainer agreement. M.F.

never claimed that she was pressured by Attorney Arellano to

retain his legal services. Thus, the referee noted:

The elements of undue pressure outlined in the
Comment to Rule 20:7.3 do not seem to exist in the
case. There is no question that the call occurred and
that the Rule was violated. However, the violation
seems more technical than substantive and therefore is
not nearly as egregious an offense as it might have
otherwise been.
We adopt the referee's findings and conclusion on this count.

¶28 Count Ten alleged that Attorney Arellano violated

former SCR 20:1.8(k)(1) and (2) by commencing a sexual
relationship with M.F. after she retained him as her lawyer.

Attorney Arellano vehemently disputed this charge. M.F.

testified in detail about the relationship. The parties

litigated this issue extensively.

¶29 Following the hearing, the referee deemed M.F.'s

version of events not credible. Extensive documentary evidence,

including billing records submitted by Attorney Arellano,

11
 No. 2011AP443-D

persuaded the referee that it would have been logistically

impossible for Attorney Arellano and M.F. to conduct the

relationship in the manner described by M.F. Thus, the referee

concluded that the OLR failed to provide clear, satisfactory,

and convincing evidence sufficient to sustain this charge. We

accept the referee's findings and conclusion in this matter.

¶30 The parties' litigation of Count Ten is relevant

because Attorney Arellano argues, persuasively, that a

significant percentage of the evidentiary hearing was dedicated

to the OLR's unsuccessful attempt to prove this charge.

Ultimately, the referee had to decide whether M.F. or Attorney

Arellano was more credible with respect to whether Attorney

Arellano engaged in an improper sexual relationship in violation

of former SCR 20:1.8(k)(1) and (2). Attorney Arellano contends

the fact he prevailed on this charge warrants a significant

decrease in the costs imposed on him.

I.G.: Counts Eleven through Thirteen

¶31 I.G. is a native and citizen of Mexico. In the fall

of 2005, I.G. and Attorney Arellano began dating. At the time,

I.G. had two minor children with a former husband from whom she

was divorced in 1999. Between 2002 and 2004, I.G. was married

to a U.S. citizen.

¶32 When I.G. met Attorney Arellano, she was trying to

obtain immigrant classification as the spouse of an abusive U.S.

citizen so she could lawfully remain in the United States and be

eligible for certain government benefits. Seeking this status

required her to file an "I-360 Petition for Amerasian,
12
 No. 2011AP443-D

Widow(er), or Special Immigrant" (I-360 Petition) along with

supporting documentation. She was working with another lawyer

at this time.

¶33 In July 2006 I.G. became pregnant and told Attorney

Arellano that he was the father of her unborn child.10

¶34 In late 2006 Attorney Arellano began to provide legal

services to I.G., including assistance in preparing the I-360

Petition. Attorney Arellano did this work individually, not

through his firm.

¶35 In March 2007 I.G. gave birth to N.G. In April 2007

Attorney Arellano executed the I-360 Petition as the person

preparing the form for I.G. as the petitioner and identified

himself as the company or organization filing the petition.

¶36 By letter dated April 20, 2007, and prepared by

Attorney Arellano, I.G. signed and filed with the INS the I-360

Petition and supporting materials. The I-360 Petition required

that the petitioner supply "Information about the spouse and

children of the person this petition is for," that is, the
spouse and children of I.G. In preparing the I-360 Petition,

Attorney Arellano included information about I.G.'s two older
children. None of the filed documents mention the baby, N.G.

¶37 Both I.G. and I.G.'s mother allegedly asked Attorney
Arellano about the omission of any information about the

expectant child on the I-360 Petition. Attorney Arellano

10
Attorney Arellano was subsequently adjudicated the father
of I.G.'s child, N.G.

13
 No. 2011AP443-D

allegedly stated he did not want to include information about

the expectant child because he did not want the state coming

after him for support, and they should just wait and he and I.G.

would be married after the baby was born.

¶38 On September 24, 2007, without prior notice to I.G.,

Attorney Arellano withdrew as counsel for I.G. I.G.

subsequently retained new counsel who notified the INS of the

need to correct the omission in the I-360 Petition by disclosing

N.G. as a child "of the person this petition is for."

¶39 Count Eleven of the OLR's complaint alleged that by

representing I.G. with respect to her I-360 Petition which asked

for information about I.G.'s children, when he knew at the time

of the representation that he was the likely father of N.G.,

without obtaining I.G.'s written consent to the representation,

Attorney Arellano violated former SCR 20:1.7(b), effective prior

to July 1, 2007.

¶40 The referee granted Attorney Arellano's motion to

dismiss this count on November 15, 2011. The OLR has not
appealed this decision, and we accept the referee's findings and

conclusions on this charge.
¶41 Count Twelve alleged that by advising I.G. not to

identify N.G. on the I-360 Petition, by failing to include
N.G.'s name on the I-360 Petition, by signing a statement

declaring he prepared the petition and that it was based upon
all information of which he had knowledge, by drafting for

I.G.'s signature and notarizing her signature on an affidavit

which did not mention N.G. and which inaccurately referred to
14
 No. 2011AP443-D

one of her other sons as her youngest son, and by filing the

petition with the U.S. Citizenship and Immigration Services,

Department of Homeland Security, Attorney Arellano violated

SCR 20:1.2(d), SCR 20:8.4(c), and former SCR 20:3.3(a)(1).

¶42 The referee granted Attorney Arellano's unopposed

motion to dismiss Count Twelve at the evidentiary hearing on

January 5, 2012. The record indicates these charges were

dismissed because I.G. failed to appear to testify.

Consequently, the uncontroverted evidence from the hearing could

not support the allegation that Attorney Arellano's

nondisclosure was intentional. Attorney Arellano had testified

that the omission of his child's name from the documents was an

oversight. We accept the referee's findings and conclusion on

this charge.

¶43 Count Thirteen of the complaint alleged that Attorney

Arellano violated SCR 20:1.16(d) by unilaterally withdrawing

from representing I.G. relative to the I-360 Petition without

prior notice and/or allowing time for employment of substitute
counsel. The OLR stipulated to the dismissal of this charge.

E.W.: Count Fourteen

¶44 In April 1991 E.W. hired Attorney Arellano to

represent her in a divorce action. The complaint alleged that

Attorney Arellano began a sexual relationship with E.W. that

continued during his representation of her. Their relationship

terminated in 1994.

¶45 By September 2007 Attorney Arellano had reason to

believe that N.S.M., I.G., and/or M.F., or possibly another
15
 No. 2011AP443-D

woman, had filed or were likely to file grievances against him

with the OLR.

¶46 On September 29, 2007, Attorney Arellano called E.W.

and spoke with her for approximately 20 minutes. According to

E.W., Attorney Arellano told E.W. that if she was called by any

investigators, or by any of the women he had reason to believe

had filed or may file grievances against him with the OLR, E.W.

should not speak with them or she should hang up and let

Attorney Arellano know that she had received such a call.

¶47 Thus, the OLR alleged that by calling E.W. on

September 29, 2007, and telling her not to speak with any

investigators, or to hang up if called, and not to speak with

any of the women who he had reason to believe had filed or may

file grievances against him with the OLR, Attorney Arellano

violated SCR 21.15(4), SCR 22.03(6), SCR 20:8.4(h),

SCR 20:8.4(a), and SCR 20:8.4(f). The OLR agreed to dismiss

this count as part of the summary judgment decision filed

November 15, 2011. Record evidence, including deposition
testimony from E.W., indicated E.W. was persuaded to provide the

OLR with untruthful information by some of the other grievants
in this matter.

¶48 In sum, following extensive pre-hearing motions,
decisions, and a lengthy evidentiary hearing, the referee filed

a report on May 25, 2012. The referee ultimately concluded that
the OLR had proven that Attorney Arellano violated SCR 22.03(6)

via SCR 20:8:4(h) because he was both misleading and untruthful

in his answers to the District Committee with regard to their
16
 No. 2011AP443-D

investigation of a grievance filed by N.S.M. (Count Eight). The

referee also concluded that Attorney Arellano violated former

SCR 20:7.3(c) by initiating contact with M.F. and making one or

more unsolicited telephone calls to her for the purpose of

inducing her to hire him to represent her in the Discrimination

Charge against the City (Count Nine). The OLR did not succeed

in proving any of the other 12 alleged counts of misconduct.

¶49 The referee then considered the appropriate discipline

after receiving the parties' briefs on the issue of sanctions.

The OLR had requested a public reprimand. Attorney Arellano

maintained that a private reprimand is sufficient and seeks a

significant, if not a total reduction in costs. The referee

filed a report on July 16, 2012, entitled "Recommendation as to

Appropriate Discipline." The referee said that taken alone, the

violation of Count Eight would merit a private reprimand, and

the violation of Count Nine would clearly merit a public

reprimand. The referee recommended that when taken together,

and considering the ABA Standards for Imposing Lawyer Sanctions,
a public reprimand was appropriate.

¶50 As to the appropriate sanction, Wisconsin adheres to a
system of progressive discipline. See In re Disciplinary

Proceedings Against Converse, 2006 WI 4, ¶37, 287 Wis. 2d 72,

707 N.W.2d 530. Attorney Arellano has been the subject of a

prior private reprimand. We agree with the referee that a

public reprimand is an appropriate sanction for Attorney

Arellano's misconduct.

17
 No. 2011AP443-D

¶51 We turn next to the issue of costs. Assessment of

costs in OLR matters is governed by SCR 22.24. Our general

policy is that upon a finding of misconduct it is appropriate to

impose all costs, including the expenses of counsel for the

office of lawyer regulation, upon the respondent. In cases

involving extraordinary circumstances the court may, in the

exercise of its discretion, reduce the amount of costs imposed

upon a respondent. SCR 22.24(1m).

¶52 The OLR filed its statement of costs on August 6,

2012, listing $40,960.49 in costs. The OLR concedes that there

are extraordinary circumstances present that justify reducing

the amount of costs imposed on Attorney Arellano, in part

because OLR voluntarily dismissed six of the 14 alleged counts

of misconduct prior to the evidentiary hearing. The OLR thus

recommends this court impose on Attorney Arellano half of the

costs, or $20,480.25, explaining that most of the OLR's trial

time was spent on claims on which the OLR did prevail.

¶53 Attorney Arellano filed a timely objection, asking the

court to impose no costs at all, and asserting, in the
alternative, that imposition of no more than 10 percent of the

costs is warranted.
¶54 In exercising our discretion regarding the assessment

of costs, we consider the submissions of the parties and all of
the following factors:

(a) The number of counts charged, contested, and
proven.

(b) The nature of the misconduct.

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 No. 2011AP443-D

(c) The level of discipline sought by the
parties and recommended by the referee.

(d) The respondent's cooperation with the
disciplinary process.

(e) Prior discipline, if any.

(f) Other relevant circumstances.
See SCR 22.24(1m).

¶55 Applying these factors, we observe that

SCRs 22.24(1m)(a)-(c) are relevant here. The complaint alleged
14 counts of misconduct and sought revocation of Attorney

Arellano's license to practice law. The referee ultimately

concluded, and we agree, that Attorney Arellano committed two

counts of misconduct, warranting a public reprimand. Without

minimizing the seriousness of Attorney Arellano's professional

misconduct, it was far less serious and of a significantly

different nature than originally alleged.

¶56 As the litigation proceeded, one witness changed her

story and conveyed exculpatory evidence to the OLR's retained

counsel that had not been disclosed to the OLR during its

investigation. The OLR promptly disclosed these developments to
respondent's counsel resulting in the dismissal of six of the 14

counts. Two counts were dismissed at trial when one of the

grievants did not appear in person and the referee concluded

telephonic testimony should not be permitted. Under these

rather extraordinary circumstances, we agree that a reduction in

costs is warranted in part because of the disparity between the

allegations and recommended discipline in the complaint and the

ultimate conclusions of this court.

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 No. 2011AP443-D

¶57 That said, we reject Attorney Arellano's assertion

that we should assess no costs at all. We are not persuaded

that the counts on which Attorney Arellano prevailed were wholly

without prosecutorial merit or that the OLR's costs pursuing

those charges were unreasonable or unnecessary. The OLR was

confronted with four separate grievants who each alleged

Attorney Arellano engaged in extremely serious misconduct. The

only evidence given for the charge of over-litigating is that

the OLR did not prevail on all counts, in part because one

grievant essentially recanted and another refused to appear.
¶58 Attorney Arellano litigated this case vigorously as is

his right. He cannot, however, be deemed wholly cooperative

with the disciplinary process given our determination that he

violated SCR 22.03(6) via SCR 20:8.4(h) by making

misrepresentations to the OLR and to its District 9 Committee or

members thereof in the course of the OLR's investigation of the

N.S.M. grievance, a matter comprising more than half of the

alleged counts of misconduct. See SCR 22.24(1m)(d). Attorney

Arellano has also been disciplined before. See

SCR 22.24(1m)(e). These factors weigh against a reduction in

costs.

¶59 On balance, we deem it appropriate to impose 25

percent of the costs on Attorney Arellano, or $10,240.13. Our

determination is not the result of the application of a precise

mathematical formula, but is based on our thorough consideration

of the record, the manner in which this case developed, the

OLR's acknowledgement that extraordinary circumstances justify a
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 No. 2011AP443-D

reduction in costs, and the factors established in

SCR 22.24(1m).

¶60 IT IS ORDERED that Victor M. Arellano is publicly

reprimanded for professional misconduct.

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

of this order, Victor M. Arellano shall pay to the Office of

Lawyer Regulation the imposed costs of this proceeding.

¶62 IT IS FURTHER ORDERED that the director of the Office

of Lawyer Regulation shall advise the court if there has not

been full compliance with all conditions of this order.

¶63 SHIRLEY S. ABRAHAMSON, C.J., and MICHAEL J. GABLEMAN,

J., did not participate.

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