(concurring in part, dissenting in part).
¶ 35. I join the court's decision and order as to the discipline imposed in this action. While I may not have reached the same conclusion as the referee with respect to each of the violations alleged, the referee's determinations are not clearly erroneous. I write separately because I disagree with the court that full costs should be imposed in this case. I agree with the referee's recommendation that costs should be prorated, but would remand this matter to the referee to determine what costs would be appropriate.
¶ 36. Attorney Polich was charged with seven counts of attorney misconduct. We have concluded that there was sufficient evidence regarding two of those counts. Neither of those counts was litigated, as the finding in count four (making false and misleading communications) was established by summary judgment and Attorney Polich admitted the violation in count five (improperly practicing law while suspended). As far as the remaining five litigated claims are concerned, while the court agreed with the referee that portions of Attorney Polich's defenses are suspect (a viewpoint with which I concur), the court's per curiam opinion nevertheless adopted the referee's findings and conclusion that there was insufficient evidence to es*280tablish those counts. Thus, Attorney Polieh prevailed on all counts that were tried at the hearing before the referee. In recommending that the costs be prorated, the referee opined that "clearly issues of fundamental fairness exist if the respondent is required to bear all of the costs of proceedings in which he fundamentally prevails." Per curiam op., ¶ 2. The court rejects this recommendation. Id., ¶¶ 2, 29-30, 32.
¶ 37. While noting that we have the discretion to apportion costs pursuant to SCR 22.24(1), see per curiam op., ¶ 29, the court recognizes that we have traditionally not done so. See, e.g., In re Disciplinary Proceedings Against Pangman, 216 Wis. 2d 440, 460, 574 N.W.2d 232 (1998); In re Disciplinary Proceedings Against Preloznik, 169 Wis. 2d 137, 485 N.W.2d 249 (1992). See also, In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶ 33, 252 Wis. 2d 261, 278, 643 N.W.2d 466; and In re Disciplinary Proceedings Against Johnson, 165 Wis. 2d 14, 20, 477 N.W.2d 54 (1991). The court reasons that there was no indication that the costs incurred by the OLR were unreasonable and unnecessary. Per curiam op., ¶ 30. The court also notes that the five counts on which Attorney Polieh prevailed had prosecutorial merit. Id. The per curiam opinion concludes that the circumstances in this case do not warrant departure from the practice of assessing full costs against an attorney found to have engaged in at least some of the alleged professional misconduct. Id. I respectfully disagree.
¶ 38. A review of the above cases suggests that the rule assessing full costs has been applied with little or no rationale. While this court certainly has the power to assess full costs even though an attorney has prevailed on some of the allegations, that does not mean that such a result is always right or just. I agree with the referee that issues of fundamental fairness exist if an attorney *281is always required to bear all of the costs of proceedings in which he or she prevails. Thus, I conclude that it is appropriate to develop standards to guide us in determining when costs should be prorated in a given case. Nevertheless, I disagree that costs should automatically be prorated based on the number of counts that have been established.
¶ 39. The Seventh Circuit Court of Appeals has held that on the issue of allocation of costs in criminal prosecutions, the general rule is that costs associated exclusively with the unsuccessful prosecution of a defendant on specific counts may not be assessed against that defendant. United States v. Pieper, 854 F.2d 1020, 1027-28 (7th Cir. 1988). On the other hand, where evidence is introduced that relates to multiple counts, it may be proper to assess costs associated with the prosecution of both the successful and the related unsuccessful counts. Id.
¶ 40. Although Pieper does not involve a disciplinary proceeding and is not binding precedent from our court, I note that we have not established standards to guide us in applying SCR 22.24 (1). Consequently, I find Pieper to be persuasive in this matter, and would apply its logic to the facts of this case.
¶ 41. Attorney Polich committed two violations of professional misconduct. Three additional allegations (counts two, three, and six) were substantially related to those violations, and the evidence overlapped as to those counts. I therefore concur with the court's per curiam opinion that Attorney Polich should pay all costs associated with the prosecution of counts two through six.1
*282¶ 42. However, counts one and seven were unrelated to the other counts. Because there was insufficient evidence to support each of those counts, it is fundamentally unfair to assess costs associated with those counts against Attorney Polich. I would therefore remand this matter to the referee to apportion costs and assess them against Attorney Polich only with respect to counts two through six. Those costs should be apportioned based on the time and expenses reasonably necessary to prosecute each of those five counts by both OLR and the referee. Should it become impossible or impractical to calculate those costs, then the OLR costs and referee expenses should be mathematically prorated to reflect five out of seven counts; that is, five-sevenths of the OLR costs and referee expenses. In addition to those costs, though, I agree with the court that Attorney Polich must pay the entire court reporter fees.
¶ 43. Supreme Court Rule 22.24 (1) clearly establishes that this court has discretion to apportion costs in OLR proceedings. The fact that we have not established standards, guidelines, and procedures for when we exercise that discretion does not abdicate our responsibility to do so in cases like this where discretion is warranted. Accordingly, I would follow the rationale set forth in Pieper until we devise our own procedures.
¶ 44. I therefore respectfully dissent from that portion of the per curiam opinion that assesses full costs against the respondent. I concur with the remainder of the decision.
*283¶ 45. I am authorized to state that Justices DAVID T. PROSSER and PATIENCE DRAKE ROGGENSACK join this opinion.I recognize that an argument could be made that Attorney Polich should be required to pay costs and fees only for the two *282counts which were substantiated, particularly in view of the fact that respondent prevailed on all counts which were actually tried. I nevertheless favor the "substantially related" approach in this instance because I do not want to discourage the OLR from prosecuting allegations that are meritorious and substantially related to violations that have already been established.