(concurring). I write separately to comment on the court’s order for restitution to a client injured by an attorney’s violation of the Code of Professional Responsibility. I do not write to object to restitution. I recognize the advantages *484of this court’s providing for restitution to a wronged client as part of an attorney disciplinary proceeding brought by the Board of Attorneys Professional Responsibility. When the court orders restitution in a disciplinary hearing, the client may be spared the expense and delays involved in initiating a separate civil proceeding against the attorney.1
*4851 write because I have several concerns about this court’s practice in ordering restitution in disciplinary proceedings: the court’s authority to impose restitution is not clearly set forth in the court’s rules; the court has not articulated the rationale of ordering, or refusing to order, restitution in each case; the court’s orders for restitution may not be consistent; and attorneys, clients, and the Board of Attorneys Professional Responsibility do not know their rights and responsibilities with regard to restitution.2
*486The disciplinary proceeding against Attorney Guen-ther involves charges of excessive fees to three clients. The referee ordered that the attorney pay restitution to one client. Upon review of the referee’s decision, this court suspended Attorney Guenther’s license to practice law for one year and further ordered “that Attorney Arthur W. Guenther, Jr., return to his client . . . the fees collected in excess of those to which the referee found he was entitled.” The court does not cite statutory provisions or supreme court rules supporting this order. Neither does it indicate whether reinstatement is to be conditioned on satisfaction of the restitutionary order. Rather, the court explains the order for restitution in the following two sentences: “It is also appropriate that Attorney Guenther return to his client . . . that portion of the fees collected which exceeded the percentage-of-sale-price in the two transactions. Our order for restitution does not affect the client’s recourse to whatever civil remedy she might have.” Page 483.
No Wisconsin statute or rule explicitly provides for restitution to clients as a form of discipline or as a remedy in attorney disciplinary proceedings.3
Although SCR 11.01(2) provides that a client may recover any compensation paid to an attorney on account of the “contract of employment obtained or made in violation of” SCR 11.01(1), the Rule is silent about whether this kind of recovery should be made part of disciplinary proceedings.
*487SCR 21.06 provides that attorney misconduct is grounds for one or more of the following types of discipline :
“(1) Revocation of license to practice law (disbarment) .
“(2) Suspension of license to practice law, including the imposition of conditions upon seeking reinstatement of the license.
“ (3) Monetary payment.
“ (4) Public or private reprimand.
“(5) Conditions upon the continued practice of law.”
Arguably, an order for restitution fits within three of the five forms of discipline enumerated in SCR 21.06: restitution may be imposed along with suspension of license as a condition on seeking reinstatement of the licenses, SCR 21.06(2) ; restitution may be imposed as a monetary payment, SCR 21.06(3) ; and restitution may be imposed as a condition upon the continued practice of law, SCR 21.06 (5).
Furthermore, even if the court’s disciplinary order is silent on restitution, apparently the Board of Attorneys Professional Responsibility and the court may consider restitution when acting on the attorney’s petition for reinstatement under SCR 22.28(4) (1). SCR 22.28 (4) (1) requires an attorney’s petition for reinstatement to show that the attorney “has made restitution or settled all claims from persons injured or harmed” by the attorney’s misconduct or, if restitution is not complete, to explain the failure or inability to do so.4
*488Although this court has ordered restitution in numerous cases, it has not articulated its rationale for doing so. Rather, the court has ordered restitution without discussion. This silence is puzzling, considering this court’s requirement that circuit courts explain their rationale in sentencing criminal defendants. Without articulated reasoning, discipline is likely to be inconsistent.5
The procedures which must be followed in a disciplinary proceeding are important for the protection of both the client and the attorney. Yet this court has not resolved several procedural issues. For example, this court has not explained the role of an aggrieved client in a disciplinary action. Is the client-victim merely a witness? Or may the victim be a party to the proceedings? In a recent attorney disciplinary proceeding, an aggrieved client petitioned to intervene as a party in *489order to assert her claim for restitution. According to the client’s Petition to Intervene, the attorney had charged her a fee for services rendered while his license was suspended. The client entered into a Stipulation for Fee Arbitration with the attorney, which stipulation specifically said that the attorney’s right to the fees would be arbitrated. According to the client’s Petition to Intervene, the arbitration panel declined to decide whether the attorney was entitled to the fee in issue, explaining that it found no guidance in Wisconsin law on this question and that it was inappropriate for the question to be decided in an arbitration proceeding. The arbitration panel apparently believed that the issue of the attorney’s right to fees charged while his license was suspended was better decided in the disciplinary proceedings before the Board of Attorneys Professional Responsibility (Board).
The Board’s complaint against the attorney — while praying that the court declare fee contracts by a suspended lawyer to be void and retention of fees to be contrary to law — urged that this declaration be made prospective only. The client argued that unless she was allowed to intervene in the disciplinary proceedings, nobody would be advocating her position. She requested that she be allowed “to intervene in the disciplinary proceedings, solely for the purposes of participating in those parts of the proceedings dealing with [the attorney’s] entitlement to legal fees for work done for clients during the period of his suspension and dealing with restitution of such fees as a remedy.”
The court, without explanation, denied the client’s motion to intervene. See In re Disciplinary Proceedings Against Mel J. Cyrak, Attorney at Law, Case No. 84-1748-D, order dated December 27,1984. The disciplinary proceeding against the attorney was ultimately dismissed. In re Disciplinary Proceedings Against Mel J. Cyrak, 124 Wis. 2d 493, 369 N.W.2d 708 (1985).
*490Related to the role of the client-victim in the disciplinary action is the issue of how to establish the client’s loss in the disciplinary proceedings. Is the client’s loss to be-confined to the particular matter raised in the proceedings or will the client be allowed to recover established losses caused by other conduct of the attorney ?6
In some cases, this court specifies to whom restitution is to be paid, the amount of restitution to be paid, and the time by which payment is to be made. In other cases the court order is less precise. In one proceeding this court ordered the disciplined attorney to accompany his petition for reinstatement with “sufficient proof that any client who may have suffered any loss through the respondent’s neglect has been made whole by the respondent.” In re Disciplinary Proceedings Against Klewin, 97 Wis. 2d 701, 702, 295 N.W.2d 11 (1980) (emphasis added) 7
Restitution also raises the question of whether money damages can be constitutionally determined in a disciplinary proceeding in which the attorney does not have the right to trial by jury. See In re Ackerman, 263 Ind. 309, 312, 330 N.E.2d 322 (1975).8
*491When the attorney’s reinstatement of license is conditioned on payment to client, the attorney’s license is tied to the ability to make restitution. There may, therefore, be a violation of state or federal equal protection guarantees if the attorney is unable to pay the amount ordered.
In this context, restitution may raise issues analogous to those raised when an offender’s probation is conditioned upon restitution to the victim. See Huggett v. State, 83 Wis. 2d 790, 803-04, 266 N.W.2d 403 (1978) (“. . . the criminal justice system should not be employed to supplement a civil suit or as a threat to coerce the payment of a civil liability or to perform the functions of a collection agency”); Bearden v. Georgia, 461 U.S. 660, 661-62 (1983) (“the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist”).
Finally, the relation between restitution in a disciplinary proceeding and damages in a civil action is unclear. In this disciplinary proceeding the court enigmatically states that the court’s order “does not affect the client’s recourse to whatever civil remedy she might have.” Recently, in In re Disciplinary Proceedings Against Kinast, 121 Wis. 2d 25, 357 N.W.2d 282 (1984), the court ordered that the attorney be publicly reprimanded for unprofessional conduct which involved charging a client an excessive fee for handling a divorce and further ordered that within 30 days of the date of the disciplinary order the attorney must pay the client the amount of $1,128.96, “recognizing that he had paid *492her $3,400 in settlement of her civil action against him.” Id. at 34. Prior to the disciplinary proceedings, the client had brought a civil action against the attorney to recover a portion of the fees she had paid the attorney by initiating and settling a civil action against him. The amount ordered in the disciplinary proceedings represented the difference between what the client had recovered in the civil action and what a reasonable fee would have been (according to the referee) for the divorce proceedings. In effect, then, this court in the disciplinary proceedings apparently nullified the settlement reached between two parties in a civil suit. In contrast, in In re Disciplinary Proceedings Against Berg, 108 Wis. 2d 437, 321 N.W.2d 303 (1982), the court, in addition to revoking the attorney's license because of five stipulated counts of misconduct, ordered him to pay named persons the sum of $5,000 or any amount ordered by the court within six months of the court order in a then pending civil suit. Id. at 443-44.
Much is at stake for both the attorney and the client in a disciplinary proceeding. I believe this court should clarify its rules regarding restitution and should develop appropriate procedures and guidelines for considering and awarding restitution.
For the reasons set forth above, I concur in the mandate, but do not join the opinion.
Substantially the same concerns exist regarding this court’s ordering an attorney to pay restitution to a client-victim in a disciplinary proceeding as exist when a court orders a criminal defendant to pay restitution to the victim in a criminal proceeding. These concerns reflect differing assumptions about both the purposes of criminal or disciplinary proceedings and the purposes of restitution.
Standard 6.12 of the Standards for Lawyer Discipline and Disability Proceedings (ABA Joint Commitee on Professional Discipline of the Appellate Judges’ Conference and the Standing Committee on Professional Discipline, 1979, as amended, 1983) (included in ABA National Center for Professional Eesponsibility, 1 Disciplinary Law and Research Procedure System (1984)) states: “The court may require a respondent to make restitution to persons financially injured by his willful conduct and to reimburse the client security fund.” According to the commentary, “[wjhenever possible, the disciplinary process should facilitate restitution to the victims of the respondent’s misconduct without requiring victims to institute separate proceedings at their own expense.”
In contrast, others argue that a civil proceeding, where a greater range of defenses is available to the attorney, is a fairer forum for adjudicating the relative rights of attorney and client than is a disciplinary proceeding, where the purpose is “ ‘to regulate the professional conduct of lawyers in the public interest.’” In re Ackerman, 263 Ind. 309, 311-12, 330 N.W.2d 322 (1975) (quoting In re Case, 262 Ind. 118, 311 N.W.2d 797 (1974) (DeBruler, J., dissenting)). In The Florida Bar v. Winn, 208 So. 2d 809, 810-11 (Fla.), cert. denied, 393 U.S. 914 (1968), the Florida Supreme Court stated, “Disciplinary proceedings are essentially a function of the Court instituted in the public interest and designed to preserve the purity of The Bar. No private rights except those of the accused attorney are involved.”
Both contract principles and ethical considerations support the conclusion that an attorney should not profit from mis*485conduct and that restitution is appropriate in a disciplinary action. See Comment, Attorney Fee Disgorgement as a Disciplinary Action, 7 U. Puget Sound L. Rev. 547, 564 (1983-84).
Wisconsin is evidently not alone in ordering restitution without express explanation. For cases from other jurisdictions, see Annot., Power of Court to Order Restitution to Wronged Client in Disciplinary Proceeding Against Attorney, 75 A.L.R. 3d 307 (1977).
Following are several Wisconsin disciplinary proceedings in which restitution appears as part of the order: In re Disciplinary Proceedings Against Kinast, 121 Wis. 2d 25, 357 N.W.2d 282 (1984); In re Disciplinary Proceedings Aganist O’Niell, 117 Wis. 2d 347, 343 N.W.2d 807 (1984); In re Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984); In re Disciplinary Proceedings Against Peckham, 115 Wis. 2d 494, 340 N.W.2d 198 (1983); In re Disciplinary Proceedings Against Dugan, 112 Wis. 2d 653, 334 N.W.2d 228 (1983); In re Disciplinary Proceedings Against Seehafer, 108 Wis. 2d 578, 322 N.W.2d 888 (1982); In re Disciplinary Proceedings Against Berg, 108 Wis. 2d 437, 321 N.W.2d 303 (1982); In re Disciplinary Proceedings Against Millard, 98 Wis. 2d 114, 295 N.W.2d 352 (1980); In re Disciplinary Proceedings Against Klewin, 97 Wis. 2d 701, 295 N.W.2d 11 (1980); In re Disciplinary Proceedings Against Larsen, 96 Wis. 2d 463, 291 N.W.2d 881 (1980); In re Disciplinary Proceedings Against Spitz, 95 Wis. 2d 527, 290 N.W.2d 682 (1980).
Conditioning reinstatement on an attorney’s having made restitution often rests on a belief that restitution is an indicia of moral fitness to practice law. Courts have taken varying positions on this issue. See In re Harris, 88 N.J. L. 18, 22-23, 95 A. 761 (1915); Petition of Stalnaker, 150 Fla. 853, 863, 9 So. 2d 100 (1942); In re Clark, 406 A.2d 28 (Del. 1979). Cf. Note, *486Victim Restitution in the Criminal Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 935-38 (1984) (summarizing the rehabilitative function of restitution in the criminal context and arguing that there are overlapping objectives in civil and criminal law).
At least one compiler has interpreted our rules as not authorizing restitution. See ABA Center for Professional Responsibility, Survey of Lawyer Disciplinary Procedures in the United States, 14, 346 (1984).
One might question, however, whether the order in In re Disciplinary Proceedings Against Dugan, 112 Wis. 2d 653, 334 N.W.2d 228 (1983), would permit reinstatement unless full restitution were made. The court ordered that the disciplined attorney, in addition to having his license revoked for several violations of the Code of Professional Ethics, “be required to show that he has made full restitution to. his clients in the malpractice, divorce and lease matters at such time as he applies for reinstatement of his license.” 112 Wis. 2d at 656. (Emphasis added.)
In several cases the court ordered a restitution to a specified client in a specified amount and sometimes within a specified time. See, e.g., In re Disciplinary Proceedings Against Kinast, 121 Wis. 2d 25, 357 N.W.2d 282 (1984) (public reprimand); In re Disciplinary Proceedings Against Swartwout, 116 Wis. 2d 380, 342 N.W.2d 406 (1984) (public reprimand); In re Disciplinary Proceedings Against Seehafer, 108 Wis. 2d 578, 322 N.W.2d 888 (1982) (public reprimand; stipulation in disciplinary proceeding to make restitution to client); In re Disciplinary Proceedings Against Berg, 108 Wis. 2d 437, 321 N.W.2d 303 (1982) (revocation).
In other cases the court ordered the attorney to show that he or she had made restitution to specified clients on application for reinstatement of the license. See, e.g., In re Disciplinary Proceedings Against Dugan, 112 Wis. 2d 653, 334 N.W.2d 228 (1983) (revocation). Compare, In re Disciplinary Proceedings Against Millard, 98 Wis. 2d 114, 295 N.W.2d 352 (1980), in which the court ordered revocation of license and restitution to be paid within 4% months and required the attorney to present satisfactory proof to the Board’s attorney showing compliance with the order of restitution. In cases in which the court has coupled public reprimand with an order for restitution, the court has not always required proof of restitution.
Professor Abraham Goldstein has considered the problem of determining which claims are to be considered in ordering restitution in the criminal context. Goldstein, Defining the Role of the Victim in Criminal Prosecution, 52 Miss. L.J. 515, 536-42 (1982) (discussing 18 U.S.C. sec. 3651 (1976 & Supp IV 1980) and several state statutes).
Restitution orders may be subject to challenge for vagueness. See In re Cornelius, 521 P.2d 497 (Alaska 1974) (challenge unsuccessful); In re Case, 262 Ind. 118, 124, 311 N.E.2d 797 (1974) (DeBruler, J., dissenting); In re Ackerman, 263 Ind. 309, 312, 330 N.E.2d 322 (1975).
The right to a civil jury trial is guaranteed under art. I, sec. 5 of the Wisconsin Constitution. Two federal circuits have upheld against federal constitutional attack sec. 5 of the Victim and Witness Protection Act of 1982, 18 U.S.C. secs. 3579-3580 (1982), which requires a court to order restitution in criminal *491cases or state on the record why it did not. United States v. Brown, 744 F.2d 905 (2d Cir.), cert. denied, 105 S. Ct. 599 (1984), and United States v. Satterfield, 743 F.2d 827 (11th Cir. 1984).