¶ 15. (concurring in part, dissenting in part). I concur in that portion of the court's decision and order reinstating the license to practice law of Attorney David V Penn. I dissent from the court's determination imposing all costs of this reinstatement proceeding ($6803.64) on Attorney Penn. These costs raise disturbing questions and require comment.
¶ 16. Attorney Penn was admitted to the State Bar of Wisconsin in May 1986. He was elected Vilas County District Attorney in November 1986 and reelected in 1988 and 1990. During this period in public office, Penn developed drug and chemical dependency problems resulting in violations of criminal law. In January 1993, after he left office, he was convicted of six *677misdemeanor drug offenses involving the use of marijuana and cocaine, and he served jail time as a condition of his probation.
¶ 17. In July 1992 Penn voluntarily suspended his practice of law. He was officially suspended from membership in the State Bar of Wisconsin in October 1993 for failure to pay membership dues. He was formally suspended by the court for a period of two years in June 1996. The record shows that Penn has not practiced law for more than nine years.
¶ 18. The record also shows, however, that in recent years Penn has made a serious and sustained effort to meet his obligations, turn his life around, and overcome his past. Two health care professionals recently evaluated Penn and recommended his readmission. The referee, the Office of Lawyer Regulation (OLR), and the Board of Bar Examiners all recommended his readmission. The court has no evidence of opposition to his readmission to the Bar.
¶ 19. Penn was assessed $23,973.29 in costs in connection with the disciplinary proceeding in 1996. He ultimately paid $26,000 to the Board of Attorneys Professional Responsibility (the Board) in an agreed-upon settlement of this obligation. Although Penn did not pay every penny of interest that had accrued prior to the settlement, he did pay the full costs plus more than $2000 in interest. The referee concluded that "Mr. Penn has paid the costs of the disciplinary proceeding." Penn's commitment to pay this heavy financial obligation contributed to a bankruptcy.
¶ 20. In June 2000, more than four years after he was suspended by this court, Penn filed a petition for reinstatement. He submitted his petition under SCR *67822.28, the controlling rule for reinstatement at that time. Supreme Court Rule 22.28(5) and (7) then provided:
(5) The administrator shall investigate the eligibility of the petitioner for reinstatement and file a report and recommendation with the board. At least 30 days prior to the hearing on the petition before a professional responsibility committee, the administrator shall publish a notice in a newspaper of general circulation in any county in which the petitioner maintained an office prior to suspension or revocation and in the county of the petitioner's residence during the suspension or revocation and in an official publication of the state bar.
The notice shall contain a brief statement of the nature and date of suspension or revocation, the matters required to be proved for reinstatement and the date on which a hearing on the petition will be held before a professional responsibility committee ...
(7) A petition for reinstatement must be accompanied by an advance deposit in an amount to be set by the board to cover all or part of the costs of the reinstatement proceeding. The board may, in any case in which to do otherwise would result in hardship or injustice, extend the time for payment or waive payment (emphasis added).
¶ 21. When Penn submitted his petition, he made an advance deposit of $200.00.
¶ 22. At the time Penn filed his petition, this court was in the process of considering changes to the rules governing attorney discipline. The new rules did not become effective until October 1, 2000. Nonetheless, the Board declined to act on Penn's petition while the changes were pending.
*679¶ 23. The new rules eliminate the role of the district professional responsibility committees in reinstatement proceedings. They provide instead that each reinstatement proceeding be assigned to a referee. Seven months after Penn submitted his petition to the Board, the new Office of Lawyer Regulation sent Penn's case to referee John N. Schweitzer. Two weeks or so later, the director of OLR retained Attorney Matthew F. Anich to represent OLR.
¶ 24. Attorney Penn raised questions about these developments. He disputed the authority of OLR to proceed under the new rules rather than the old rules, given that his petition was filed more than three months before the new rules took effect. He particularly disputed the retention of a referee under the new rules and the appointment of private counsel to represent OLR, recognizing that he could be called upon to pay all their expenses. He also disagreed with the scope of private counsel's reinstatement investigation and successfully challenged the choice of a specific expert to conduct a drug and alcohol abuse assessment.
¶ 25. The referee subsequently acknowledged that Penn's case produced "the first public hearing on an attorney's petition for reinstatement under the Supreme Court Rules that went into effect on October 1, 2000," and he wrote an analysis of the various issues raised by Penn for "their bearing on future hearings."
¶ 26. A careful reading of the record shows that Penn raised several legitimate issues about the procedures to be followed and the powers of OLR, all of which worked to increase his costs.1 He is now asked to pay all *680costs of this proceeding ($6803.64), including all costs of deciding these new issues.
¶ 27. Admittedly, Penn is not now challenging these costs before this court; but it takes no imagination to understand that he has simply surrendered in order to stop the OLR cost meter from running.
¶ 28. Attorney Penn is being assessed nearly seven times the costs being assessed against Attorney Hyndman in another matter decided today, in large part because the much more serious Hyndman case was handled under the old rules. Disciplinary Matter Against Hyndman, 2002 WI 6, 249 Wis. 2d 650, 638 N.W.2d 293. I think this result is manifestly unfair. No doubt, Attorney Penn should pay reasonable costs. In my view, full costs are not reasonable under the circumstances here and will impose a hardship on an attorney trying to start over. Consequently, on the issue of costs, I dissent.
¶ 29. I am authorized to state that Justice WILLIAM A. BABLITCH joins this concurring/dissenting opinion.
The referee ruled against Penn on the question whether OLR could assign an outside attorney to represent it in a reinstatement proceeding. Nonetheless, the referee wrote: "The language in the new versions of SCR 21.03(h), SCR 21.03(o), *680SCR 21.04, and SCR 21.05 can be read as not permitting such an assignment, and a rule change to clarify the language to explicitly permit the assignment of outside counsel is highly recommended."
The new version of SCR 22.24(1) reads: "The supreme court may assess against the respondent all or a portion of the costs of a proceeding in which it imposes discipline and enter a judgment for costs." An amendment to this rule is presently under consideration to "clarify" that costs may be imposed in a reinstatement proceeding. In the Matter of the Petition For Amendments to Supreme Court Rules Relating to the Lawyer Regulation System, Petition 01-12 at pages 26-27.