Disciplinary Proceedings Against Krueger

SHIRLEY S. ABRAHAMSON, C.J.

¶ 40. (concurring). Attorney Krueger objected to certain duplica-tive charges (which were corrected) and also asserted that the fees charged by counsel representing the Office of Lawyer Regulation (OLR) were excessive in light of the issues involved in the matter. Attorney Krueger failed to suggest a reasonable fee.

¶ 41. I join the per curiam opinion assessing Attorney Krueger with the full costs of the disciplinary proceeding.

¶ 42. I write separately once again, as I did in my concurrence in OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, on the issue of imposition of costs in disciplinary proceedings in which an attorney is disciplined.

¶ 43. As I explained in Konnor, the issue of imposition of costs has recently divided this court in a few cases, with Justice Prosser vehemently opposing our present method of generally imposing the costs of the *603discipline proceedings on the disciplined lawyer. Justice Butler has proposed apportioning fees on the basis of the charges proved. This method is not applicable in the present case.

¶ 44. Because the court was concerned about its internal debate about imposition of costs, the court asked the Office of Lawyer Regulation (OLR), the Board of Administrative Oversight, and the State Bar of Wisconsin to consider the issue of the imposition of costs and make recommendations to the court. As a result, Keith Sellen, director of OLR, in effect petitioned the court for a modification of SCR 22.24(1) (2004)1 and 22.001(3) (2004),2 relating to imposition of costs in OLR proceedings.

¶ 45. Mr. Sellen proposed that OLR-incurred attorney fees be paid by OLR through increased assessments to members of the bar and that other costs incurred by OLR in prosecuting a discipline case be *604assessed by the Supreme Court in its discretion against the disciplined lawyer.3 This proposal was one of the several possible proposals I outlined in my Konnor concurrence. See also OLR v. Backes, 2005 WI 59, 281 Wis. 2d 1, 697 N.W.2d 49 (Bradley, J., concurring, joined by Abrahamson, C.J., Wilcox, J., & Crooks, J.) (examining the advantages and pitfalls of alternatives to the present system of apportioning costs).

¶ 46. The Court held a hearing on Mr. Sellen's petition on November 14, 2005.

¶ 47. Several persons appeared at the hearing or wrote letters discussing Mr. Sellen's proposal. Their suggestions ranged from retaining the court's current practice of imposing full costs on a disciplined attorney (except in exceptional circumstances described in each particular case) to adopting one of several methods of apportioning costs.

¶ 48. In anticipation of the hearing, the State Bar conducted a poll, posing the following question relating to imposition of costs in discipline proceedings:

*605Currently, the Wisconsin Supreme Court generally charges full costs of disciplinary proceedings, including legal fees, against an attorney who is found to have violated one or more of the Rules of Professional Responsibility. The Court generally imposes full costs even if some OLR charges against the attorney are dismissed or the discipline is less than OLR requested. Should the Supreme Court (select one):
_Continue the current assessment policy of generally imposing full costs against the disciplined attorney.
_Revise its policy to permit apportionment of costs. This might require an increase in the annual OLR assessments to lawyers.
_Adopt the "American Rule" in which each litigant pays its own attorney fees? Under this option, a disciplined attorney would not be responsible for the fees incurred by OLR in proving a violation. This would require an increase in annual OLR assessments to lawyers.
_Adopt the "English Rule" in which the losing party pays the prevailing party's attorney fees? This option is essentially the same as current policy, except that OLR would be required to pay attorney fees when an attorney prevails on all counts. This option would also require an increase in the annual OLR assessments to lawyers.

¶ 49. The poll results were not known at the time of the hearing. The Bar recently reported an early draft of the poll results to the court. The attorneys and judges polled were significantly divided on how costs should be imposed on disciplined attorneys. Following is the Bar's summary of the results of the Bar poll:

Most respondents split between continuing the current assessment policy (37%) and permitting apportionment of costs (36%) for how the Wisconsin Supreme Court should handle costs of disciplinary proceedings. Another *60617% feel the Court should adopt the "English Rule," 9% feel it should adopt the "American Rule," and a handful of respondents checked a combination of methods.
Continue current assessment policy 37%
Revise policy to permit apportion- 36% ment of costs
Adopt "English Rule" - losing party 17% pays the prevailing party's attorney fees
Adopt "American Rule" - each litigant 9% pays its own attorney fees
Nearly one-half (47%) of judges feel the Supreme Court should continue its current assessment policy, while lawyers split between permit apportionment of costs (37%) and continue the current policy (33%). Another 33% of judges chose permit apportionment of costs.

¶ 50. The court has made no decision on Mr. Sellen's petition as of the date of the release of this opinion.

¶ 51. I agree with Justice Bradley's concurring opinion in OLR v. Backes, joined by three other justices, that until the court acts on Mr. Sellen's petition, we should follow our present practice of imposing full costs on a disciplined attorney except in exceptional circumstances (as described in the particular case in which we deviate from this general practice).4 Charging full costs to the disciplined lawyer is based on our decision to place the onus of the costs of the disciplinary proceeding on the disciplined attorney who created the need for the disciplinary proceeding, rather than placing the onus of the *607costs of the disciplinary proceeding on the "innocent" members of the bar. As I wrote in Konnor, we should, in exercising our discretion to deviate from the full cost approach, hold ourselves to the same high standards we demand of circuit courts when exercising their discretion.

¶ 52. For the reasons set forth I join the per curiam and write separately.

Supreme Court Rule 22.24(1) (2004) provides as follows:

(1) The supreme court may assess against the respondent all or a portion of the costs of a disciplinary proceeding in which misconduct is found, a medical incapacity proceeding in which it finds a medical incapacity, or a reinstatement proceeding and may enter a judgment for costs. The director [of OLR] may assess all or a portion of the costs of an investigation when discipline is imposed under SCR 22.09. Costs are payable to the office of lawyer regulation.

Costs are defined in SCR 22.001(3) (2004) as follows:

"Costs" means the compensation and necessary expenses of referees, fees and expenses of counsel for the office of lawyer regulation, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis, and any other costs and fees authorized by chapter 814 of the statutes.

Rule 05-01, In the Matter of the Petition for Amendment to Supreme Court Rule 22.001(3) Relating to Cost Assessments in the Lawyer Regulation System.

The petition requested that the costs be defined to eliminate counsel fees of OLR. The petition requested that costs be defined as follows:

"Costs" means the compensation and necessary expenses of referees, litigation expenses other than counsel fees of the office of lawyer regulation, a reasonable disbursement for the service of process or other papers, amounts actually paid out for certified copies of records in any public office, postage, telephoning, adverse examinations and depositions and copies, expert witness fees, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis, and any other costs and fees authorized by chapter 814 of the statutes (emphasis added).

OLR v. Backes, 2005 WI 59, ¶¶ 64, 66, 69, 70, 281 Wis. 2d 1, 697 N.W.2d 49 (Bradley, J., concurring, joined by Abrahamson, C.J., Wilcox, J., & Crooks, J.).