¶ 53. (concurring in part, dissenting in part). I agree with the referee's recommendation, affirmed by this court, to suspend Attorney Krueger's license to practice law for a period of 60 days. But I disagree with this court's determination to impose full costs of more than $20,000 for the disciplinary proceeding.
¶ 54. This case is reminiscent of OLR v. Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376, in that the OLR sought much more stringent discipline than it obtained. The attorney who successfully fought the severity of the discipline is nonetheless required to pay full costs.
¶ 55. Supreme Court Rule 22.24(1) provides in part that "The Supreme Court may assess against the respondent all or a portion of the costs of a disciplinary proceeding in which misconduct is found...." This is a reasonable rule, but it implies the exercise of discretion. As Justice Butler noted in OLR v. Polich, 2005 WI 36, ¶ 38, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J., concurring in part, dissenting in part), our cases show a pattern of assigning full costs to disciplined attorneys "with little or no rationale," irrespective of the factual circumstances. Although the failure to exercise discretion is tantamount to an erroneous exercise of discre tion, our court consistently proceeds as though this *608principle is inapplicable to the imposition of costs in attorney discipline cases.
¶ 56. Here, OLR issued a three-count complaint and it subsequently proved the three counts to the satisfaction of the referee. However, it also asked that Attorney Krueger be suspended for six months. Attorney Krueger resisted. After an evidentiary hearing, the referee noted that Attorney Krueger had no previous discipline and that "[a] six-month suspension . . . would work an undue hardship given the fact that under SCR 22.28, an attorney's license does not automatically get reinstated but requires an additional hearing before a referee pursuant to SCR 22.29 . . . ." The investigation, hearing, and supreme court review of a reinstatement motion may take a year, so that a six-month suspension may end up as an 18-month suspension, or more. Under current practice, the disciplined attorney is expected to pay the full cost of the reinstatement process as well as the cost of initial discipline.
¶ 57. Under these circumstances, an attorney has a real incentive to fight any proposed suspension of six months or more if that proposed suspension is not certain to be adopted. But the attorney will be forced to pay OLR's prosecution costs so long as any discipline is imposed.
¶ 58. This court should not enforce such a rule without explaining or justifying what it is doing. Rather, the court should ask referees to recommend costs, full or partial, based on the particular circumstances in each case, and to explain each recommendation as part of the Referee's Report. This regimen would permit the court to react to a recommendation and develop criteria for the equitable assessment of costs.