{concurring).
¶ 37. I write to provide some context and perspective *297regarding costs in disciplinary proceedings. First, some background about the lawyer regulation system. Second, facts about costs for the fiscal years July 1999 through June 2004. Third, the dissenting opinions (in seven cases) during these years objecting to the levying of full costs on the lawyer involved. Fourth, alternatives the court might consider in levying costs on the lawyer involved. Fifth, given this discussion, where do we go from here.
H
¶ 38. To put costs in context and perspective, it is helpful to have some background about the lawyer regulatory system and the rules regarding costs.
¶ 39. The Code of Professional Responsibility and the provisions for the lawyer regulatory system have always been designed to protect the public from lawyers' unethical conduct and to protect lawyers from unfounded and unproven charges. In 2000 the court revamped the lawyer regulation system to provide more protections for lawyers, complainants, and the public. In adopting the change, the court heard from representatives of the State Bar of Wisconsin and the American Bar Association, individual lawyers, and the public. The court also consulted with a mediator, Kenneth Fein-berg, about the operation of the then-existing lawyer regulatory system.
¶ 40. The Office of Lawyer Regulation, as created effective October 1, 2000, was designed to provide a series of checks and balances to better protect the public and lawyers. The entire OLR system is overseen by a Board of Administrative Oversight composed of lawyers and public members. Before a complaint is filed against a lawyer, an independent panel composed of *298lawyers and public members must find probable cause to proceed against the lawyer. If a complaint is dismissed, the complainant can get a review of the dismissal. If a complaint is filed, a referee determines the facts and whether violations have occurred, and recommends discipline. The Supreme Court ultimately establishes the facts, the violation, and the discipline.
¶ 41. The lawyer regulatory system is presently totally funded by annual assessments on the lawyers licensed to practice in the state, not by the state.1 For fiscal year July 2004-June 2005, each member of the bar was assessed $132.00. An individual lawyer who is subject to a disciplinary proceeding, a medical incapacity proceeding, or a reinstatement proceeding may be ordered to pay all or part of the costs of his or her proceeding, thus reducing the total operating expenses of the lawyer regulatory system and the assessment on each member of the state bar.
¶ 42. Since 1970, two types of expenditures have been present in the lawyer regulatory system: (1) general administrative expenses, and (2) costs of proceedings against a particular lawyer. The state and the members of the state bar have, over the years, provided financial support for the general administrative expenses of the lawyer regulatory system since 1970. Costs of a proceeding against an individual lawyer during this period could be levied against that lawyer.
¶ 43. In 1970 the state paid all the expenses incurred by the Board of Bar Commissioners, the administrative entity governing the lawyer regulatory system. The state's expenditures for the system were reduced to the extent that the costs of formal proceed*299ings against an individual attorney were recovered from the attorney involved in the proceedings.2
¶ 44. In 1976, when the Board of Attorneys Professional Responsibility (BAPR) replaced the Board of Bar Commissioners, only the expenses of formal proceedings were paid by the state.3 The general expenses of administering the lawyer regulatory system were imposed on the members of the state bar. Costs were apparently still levied against individual lawyers.
¶ 45. In 1981-82 the members of the state bar became responsible for funding in full the lawyer regulatory system. The Joint Finance Committee of the State Legislature eliminated state funding for the lawyer regulatory system and imposed the expenses of the system on members of the state bar.4 Continuing past practice, the Supreme Court permitted BAPR to collect from an individual attorney the costs incurred in his or her disciplinary proceeding, reinstatement proceeding, or moral character investigation.5
*300¶ 46. Thus, since at least 1970, Wisconsin has authorized levying on an individual attorney all or a portion of the costs incurred in that attorney's disciplinary proceedings.
¶ 47. Similarly, the present supreme court rules provide for the levying of all or a portion of the costs on the individual lawyer in any proceeding in which misconduct is found, in which medical incapacity is found, and in which reinstatement is granted or denied after license suspension.6 -
¶ 48. Costs in individual discipline, medical incapacity, and reinstatement proceedings are defined in the rules as follows:
• Compensation and necessary expenses of referees;
• Fees and expenses of counsel for the Office of Lawyer Regulation;
• Reasonable disbursements for service of papers;
*301• Amounts actually expended for certified copies of public records, postage, telephone, adverse examinations and depositions, witness fees and expenses, compensation and reasonable expenses of experts and investigators employed on a contractual basis; and
• Costs and fees authorized by chapter 814 of the statutes.7
II
¶ 49. I move now to analyze the costs levied on individual attorneys from the beginning of fiscal year 1999 (July 1, 1999) through calendar year 2004. Some of these cases were initiated by BAPR and completed by OLR; others were initiated and completed by OLR.
¶ 50. Costs are not levied when no violation is proved or when a stipulation is reached before a referee is appointed. Otherwise the general practice of the court has been to levy the full costs of the discipline, medical incapacity, or reinstatement proceeding on the lawyer involved. If a lawyer cannot pay the full costs immediately, an agreement may be reached to enable the lawyer to pay the costs over time. If a lawyer is indigent, all or part of the costs are waived.
¶ 51. During this five-year period the court decided 123 disciplinary cases, 83 of which were contested and 40 of which were stipulated. The court also decided 15 reinstatement cases (all of which involved formal proceedings and involved costs) and three medical incapacity cases (all resolved by stipulation with no costs). In only seven cases did one or more justices dissent from levying full costs, and advocate instead *302levying partial costs; five were contested disciplinary cases and two were reinstatement proceedings.8
*303¶ 52. To evaluate the functioning of OLR and costs, here are some facts for these five fiscal years:
• Misconduct was found on all counts in 66 of the 83 contested disciplinary cases, or in 80% of contested cases.
• Misconduct was found on some (but not all) counts in 11 of the 83 contested disciplinary cases, or in 13% of contested disciplinary cases.
• All counts were dismissed in 6 of the 83 contested disciplinary cases, or in 7% of contested disciplinary cases and no costs were levied.
• In the 15 reinstatement cases, 10 reinstate-ments were granted and 5 were denied.
• The costs in the 92 disciplinary and reinstatement proceedings during this period in which costs were levied ranged from a few hundred dollars to the five highest costs of almost $52,000, $27,500, $22,500, $21,800, and $20,500. The average total cost levied on an individual lawyer for the 92 cases in this period in which costs were levied was $6170.
• Costs in the 92 disciplinary and reinstatement proceedings in which costs were levied on an individual lawyer were less than $4000 in 54 *304cases (58% of the cases), between $4000 and $10,000 in 20 cases (22% of the cases), and between $10,000 and $20,000 in 13 cases (15% of the cases), and over $20,000 in 5 cases (5% of the cases). Of those 18 cases in which costs exceeded $10,000, one was a reinstatement case, in which reinstatement was denied.
• Attorney fees in the 92 disciplinary and reinstatement cases in which costs were levied on an individual lawyer ranged from $289 to a high of $32,400. Attorney fees comprised about 63% of the total costs levied.
• Costs levied for the five fiscal years totaled $569,071. OLR collected $431,958 in costs during the same period.
H-l HH
¶ 53. I know of only one case during this period in which the court levied less than full costs. Dissenting opinions in seven cases have objected to the levy of full costs on an individual lawyer from July 1,1999 through this case. The dissents have varied in length, vigor, and vitriol, as is each justice's prerogative.
¶ 54. Although much heat has been generated about costs in some of the seven cases, including this one, unfortunately little light has been shed on the subject.
¶ 55. Except for the dissent in Polich (mandated today), proposing that costs be levied on the basis of counts proved,9 the other dissenting opinions offer no *305principles, criteria, or guidelines to assist the court in fairly and equitably exercising its discretion to levy less than full costs.
¶ 56. In determining reasonable attorney fees, the court has adopted in non-disciplinary cases the lodestar approach for calculating attorney fees: The reasonable number of hours is multiplied by the reasonable hourly rate. Supreme Court Rule 20:1.5(a) lists factors to be considered in determining the reasonableness of a fee. The lodestar approach is the approach actually used for attorney fees charged in disciplinary cases. In an OLR matter, OLR must submit evidence supporting the hours worked. The hourly rate is fixed at $60 by supreme court rule.10
¶ 57. In three of the seven cases in which there has been a dissent on full costs levied on the lawyer involved, the dissent merely objected to levying full costs without explaining what a reasonable levy might be.11
*306¶ 58. In OLR v. O'Neil, 2003 WI 261, 261 Wis. 2d 404, 661 N.W.2d 813, the attorney disclosed extensive information to police about meeting with his client, Erik Garcia, regarding a divorce. Garcia's wife was found dead the same day Attorney O'Neil filed the divorce petition; Garcia called to request a refund of the fee because he no longer needed a divorce. In several subsequent interactions with the police, Attorney O'Neil disclosed the details of conversations with his client and turned over his divorce file, without consulting with Garcia or invoking the attorney-client privilege. Garcia was later convicted of first-degree intentional homicide in the death of his wife.
¶ 59. The referee recommended that a public reprimand be imposed for several reasons: None of the disclosed files or information from Attorney O'Neil was used in Garcia's prosecution; Garcia did not make an issue of the disclosure at his trial; O'Neil claimed he was trying to help Garcia; and O'Neil cooperated with OLR. The referee recommended that Attorney O'Neil pay the full costs of the proceedings ($11,438.82). This court agreed with the reduced penalty and the levy of full costs.
¶ 60. Justices Bablitch, Prosser, and Sykes agreed with the discipline imposed but dissented in a one-sentence dissent from the levy of full costs as excessive, without explanation or discussion of what would be reasonable costs. In his concurring and dissenting opin*307ion in the present case, Justice Prosser classifies this case as one that was over-litigated.12
¶ 61. In OLR v. Webster, 2002 WI 100, 255 Wis. 2d 323, 647 N.W.2d 831, the referee recommended the denial of Attorney Webster's petition for reinstatement to practice law in Wisconsin. Attorney Webster's license to practice law was suspended "for two years following his felony conviction in federal court on the charge of aiding and abetting the fraudulent concealment of a debtor's property from a bankruptcy trustee."13 Following his release from federal prison, the referee found that Attorney Webster, in a series of minor infractions, had engaged in the unauthorized practice of law. The referee noted that individually these offenses did not necessarily require that Attorney Webster's petition be denied, but that cumulatively they rendered Attorney Webster unable to overcome the requisite burden imposed by law for reinstatement. This court agreed and ordered costs to be paid in the amount of $9121.75 ($7224.10 for the proceedings before the referee; $1897.65 for the costs incurred during the appeal).
¶ 62. The dissenting justice argued for reinstatement, characterizing the infractions as "molehills of unauthorized practice" being elevated to great heights and the costs as a "whopping sum."14
¶ 63. In OLR v. Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287, Attorney Penn petitioned for reinstatement to practice law in Wisconsin after a suspension following six misdemeanor drug convictions. This court agreed with the referee that reinstatement was warranted. The court imposed the reinstatement proceedings costs totaling $6803.64 on Attorney Penn, hut *308allowed Attorney Penn one year to pay rather than the six months recommended by the referee. Two justices concurred in the reinstatement but dissented from the court's levying full costs on the lawyer. Attorney Penn objected to proceeding under the new OLR rules for reinstatement but did not object to the costs. The dissenting justices objected to the costs compared to those that would have been imposed under the prior procedure.15
¶ 64. In a fourth case, OLR v. Trewin, 2004 WI 116, 275 Wis. 2d 116, 684 N.W.2d 121, the referee found that Attorney Trewin violated several rules involving more than one client. The referee recommended a five-month suspension and payment of full costs. This court agreed.
¶ 65. Attorney Trewin objected to costs exceeding $25,000 on the ground that many of the facts were undisputed and that much of the OLR costs related to dismissed claims that were not challenged on appeal or were unreasonably incurred in excessive and redundant discovery. The court noted that the determination of whether those undisputed aspects of his case amounted to disciplinary violations was "hotly contested."16
¶ 66. The Trewin dissent (on costs, but not discipline) asserted that "in retrospect" certain counts "were overpled."17 Retrospect is far from perfect. OLR's losing on a charge is not necessarily the equivalent of over-pleading.
*309¶ 67. The Trewin dissent asks whether the "cost assessment in some disciplinary proceedings is consistent with the lodestar methodology or whether it is driven by nothing more than OLR's legitimate need for funding and [the court's] cold-blooded political determination that additional costs not be assessed to the members of the state bar." "Both of these factors are reasonable," concludes the dissent, "but not if they completely override the element of fair play to a respondent attorney."18 In my opinion, neither of these factors is reasonable under any conditions. Furthermore, neither factor has been asserted as justifying the levy of costs in any proceeding.
¶ 68. In a fifth case, OLR v. Marks, 2003 WI 114, 265 Wis. 2d 1, 665 N.W.2d 836, the referee recommended that Attorney Marks be suspended for 60 days based on a finding that Attorney Marks engaged in intentional misrepresentation in violation of SCR 20:8.4(c) when he wrongfully "notif[ied] two insurance companies that he maintained a lien on the proceeds for 25 percent of his former client's recovery in a personal injury wrongful death claim," contrary to the plain language of the fee agreement.19 The referee dismissed two claims that were filed against Attorney Marks under the Michigan Rules of Professional Conduct. The court disagreed with the dismissal but did not remand the matter in the interest of judicial economy. Attorney Marks argued that a 60-day suspension was too long. *310We agreed with the referee, noting that Attorney Marks had been reprimanded on three separate occasions.
¶ 69. The dissent asserted that the costs were disproportionate to the seriousness of the offense and "in part reflect OLR's obsession to appeal an issue that it lost before the referee."20
¶ 70. In a sixth case mandated this same day, OLR v. Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367, one dissent proposes levying costs on the basis of counts proved.21 We rejected this methodology in several cases, most recently in In re Pangman, 216 Wis. 2d 440, 574 N.W.2d 232 (1998), without explanation. The other dissent does not fully subscribe to this methodology but joins in seeking a remand to the referee for an apportionment of costs.22
¶ 71. The fairness of this approach is open to question. For example, Attorney Polich failed to comply *311with CLE requirements. His office received notification of his problem and suspension of his license by certified mail. OLR was justified in prosecuting Polich for practicing without a license, even though these counts were dismissed. Attorney Polich's defense was that his staff failed to notify him that he was suspended. As the referee stated, the attorney's explanation is susceptible to skepticism. The referee judged the credibility of the witnesses, and this court must abide by the referee's determination of credibility, even though we too are skeptical of Attorney Polich's explanation for the counts that were dismissed.
¶ 72. Nothing in the record indicates that the counts on which Attorney Polich prevailed were without prosecutorial merit or that the OLR costs were unreasonable or unnecessary. Attorney Polich's conduct caused this prosecution to proceed on all the counts. Why should the costs Attorney Polich caused OLR to incur be shifted to all the other attorneys of the state who are innocent of any wrongdoing? Between the members of the state bar and Attorney Polich, why should the members pay for any part of the prosecution Polich (who was disciplined) caused?
¶ 73. In the present case, the seventh case, the dissent charges the Office of Lawyer Regulation with over-litigating four cases.23 The only evidence given for the charge of over-litigating is that OLR did not prevail on all counts. No hearing was held by the referee or this court on the issue of the reasonableness of the costs incurred in any of the cases; neither the OLR nor the lawyer involved had an opportunity to explain the costs or rebut the charge of over-litigating in any of the cases. *312I do not think that the court or any justice should make unsubstantiated charges that either OLR staff or retained counsel over-litigated a case.
¶ 74. No one has accused the lawyers representing OLR in any of these cases of padding their hours, that is, misstating the number of hours worked. Everyone agrees they spent the hours reported. Rather, a dissenting justice has sometimes opined that the OLR lawyer should have spent less time on the case.
¶ 75. OLR staff lawyers get paid regardless of the hours they spend on particular cases. They have more than enough work to keep busy working efficiently on the cases they have. They need not spend excess time on a case.
¶ 76. Retained counsel take OLR cases as a public service and are paid $60 an hour, a rate far below the market rate for legal work. A lawyer retained in an OLR case is lucky to cover his or her office overhead, much less turn a profit. There is simply no incentive for retained counsel to over-litigate under these circumstances, that is, to spend too many hours on an OLR case! Time spent at $60 per hour cannot be spent on cases that pay more. As one lawyer retained by OLR joked at a recent seminar, "I get paid $60.00 per hour for OLR work. I don't ask an extra question."
¶ 77. In the present case, the dissent charges that OLR utilized different procedures in two cases that straddled the change from BAPR to OLR so as to increase the costs in the case using the new OLR procedure.24 Implicit is an allegation that OLR improperly manipulated the procedure to increase attorney fees or obtain a favorable recommendation. Nothing in the record supports any such inference.
*313¶ 78. Finally, the dissent in the present case asserts that several policy questions should be addressed (and they are good ones) but fails to advance the discussion of these policy issues. The dissent poses as one policy question, "What factors should this court consider when a disciplined attorney moves to reduce full costs?"25 The dissent does not answer its own question (and has not answered this question in its prior dissents), other than recommending in the present case that the case be remanded to the referee to levy costs (without giving any guidance to the referee). Nevertheless the question deserves a response.26
IV
¶ 79. Shifting costs to a losing party is a troublesome issue in the American system, and states vary considerably in their approaches to costs incurred in individual cases in the lawyer regulatory system. Some states impose no costs on the disciplined attorney; others impose a standard fee that varies with the level of discipline or stage of the proceeding. Still other states, like Wisconsin, levy all costs on the individual lawyer, absent a showing of an inability to pay. Each alternative for dealing with costs has its own set of advantages and pitfalls.
¶ 80. In the hope that I might advance the discussion about costs, let me present a list of several alternatives for dealing with costs. The list is not exhaustive. Until an attempt is made to articulate and discuss *314alternatives, the debate about costs will continue in a relatively unproductive manner. As I see it, here are some alternatives:
¶ 81. (1) The court can retain the present system, namely that the court levy all or part of the costs against the lawyer involved. These costs include such things as the cost for the referee and court reporter, as well as reasonable disbursements and attorney fees. The advantage of this alternative is it gives the court discretion to allocate fairly the costs in each case. The disadvantages are that no principles, criteria, or guidelines have been developed for levying partial costs, and that a justice may dispute the costs on a hunch, without taking any testimony or considering any evidence, that the costs are too high.
¶ 82. Alaska has set forth factors for the court or the board to consider in imposing costs and fees on a lawyer when a finding of misconduct is made, including the following: the complexity of the disciplinary matter; the duration of the case; the reasonableness of the number of hours expended by counsel and the reasonableness of the costs incurred; the reasonableness of the number of counsel used; and counsel's efforts to minimize fees.
¶ 83. If Wisconsin retains the present system of allowing the levy of partial costs, this court should adopt criteria for the imposition of costs and require the referee to levy costs. A referee is in a better position than the justices of this court to levy costs: The referee is often a practicing lawyer with experience in keeping time sheets, has prepared cases, and is familiar with billing norms. Even if the referee is not a practicing lawyer, the referee has witnessed first-hand the quality of services rendered and can take testimony on the reasonableness of the costs.
*315¶ 84. (2) The court can adopt a bright-line rule that the court shall levy all costs against the lawyer. The advantage of such a rule is certainty and uniformity. But not all cases are the same. The disadvantage is that without court discretion, unfairness may result.
¶ 85. (3) The court can adopt a bright-line rule that no costs be levied against the lawyer involved. The advantage of such a rule is certainty and uniformity; it is simple to administer. All members of the state bar would bear the expenses of prosecuting individual cases rather than the individual lawyer involved. If the court were to adopt this alternative, the assessment of each member of the state bar would probably increase by about $5.00 per year, a relatively small amount.
¶ 86. (4) The court can adopt a rule that the court (or referee) shall levy costs on the basis of the counts successfully proved against the lawyer, if the lawyer is found guilty of some of the charges. One of the Polich's dissents proposes this solution and suggests two ways of allocating costs on the basis of counts proved and dismissed. Both solutions are not as easy or as fair in application as they might initially sound. Costs do not necessarily increase proportionally with the number of counts, some of which are proved and some not, and the members of the bar upon whom costs are imposed are innocent, while the disciplined lawyer is not.
¶ 87. (5) The court can adopt a rule that all costs shall be levied against the lawyer except the attorney fees. Attorney fees seem to have generated the most discussion in the court and eliminating the levy of attorney fess would substantially reduce costs levied against the lawyer involved. Under this proposal attorney fees would be treated as administrative costs to be funded by an increased assessment imposed on all members of the state bar. This alternative is proposed *316by a petition by Keith L. Sellen, Director of the Office of Lawyer Regulation recently filed in this court. It will be heard sometime in the fall of 2005.
¶ 88. (6) The court can adopt a rule levying a fixed or graduated administrative fee rather than an expense-based amount. Several states employ this technique. Under this system, probably a much smaller amount would be collected from the lawyer involved.
¶ 89. No method has clearly distinct advantages over imposing full costs on a disciplined lawyer or is free from significant pitfalls.
V
¶ 90. The fundamental issue presented is who should fund the costs incurred to prosecute individual cases against disciplined lawyers: The disciplined lawyer against whom proceedings were brought after probable cause was found, or the members of the bar? And in what proportion should these costs be borne? The court has asked the Office of Lawyer Regulation, the Board of Administrative Oversight, and the state bar to consider this issue and report to the court. A petition has been filed recently.
¶ 91. In the absence of a proposal that has been clearly articulated, debated, and adopted, I conclude that levying partial costs without any principles, criteria, or guidelines degenerates into unbridled discretion. We demand that circuit courts exercise discretion according to principles. And rightly so. We demand that circuit courts explain their exercise of discretion. And rightly so. We should hold ourselves to this same high standard. Therefore I conclude that full costs should be levied on the lawyer disciplined until the court can levy partial costs according to established principles.
*317¶ 92. For the reasons set forth, I write separately, in the hope that with costs put in perspective and context, we can develop a sound proposal for determining whether and when partial costs should be levied.
SCR 21.21 (Wis. Stat. Ann. 2001-02).
Wis. Stat. § 256.283(8)(d)(9) (1971).
In re Regulation of the Bar of Wisconsin, 74 Wis. 2d ix (1976).
1981-82 BAPR Annual Report.
1981-82 BAPR Annual Report.
In 1979 a rule amendment provided that BAPR or the referee (and in 1980 the court) could assess the individual lawyer for direct and indirect costs of a litigated proceeding. In the Matter of Promulgation of Supreme Court Rules, filed Dec. 11, 1979 (on file with the Clerk of Supreme Court, Madison, WI). The rules did not define direct and indirect costs.
In December 1980 the court amended the rule to define costs. Costs were defined in essentially the same way as in the current rule, but the costs did not explicitly include BAPR's attorney fees in formal proceedings. In the Matter of the Amendment of Supreme Court Rules Governing Enforcement of *300Attorney Professional Responsibility (SCR Chapters 11, 21 and 22), filed Dec. 29,1980 (on file with the Clerk of Supreme Court, Madison, WI) (creating SCR 22.01(6m) and amending 22.10). Apparently the practice was to assess the individual attorney for costs incurred in formal proceedings involving that attorney.
In 1985 the rule on costs was amended so that the Supreme Court may assess all or part of the costs of the proceedings in which it acted and BAPR may assess all or part of the costs of a proceeding in which the board imposes discipline. In the Matter of the Amendment of Supreme Court Rules Governing Enforcement of Attorneys Professional Responsibility: SCR 22.20, filed May 28, 1985 (on file with the Clerk of Supreme Court, Madison, WI). See SCR 22.20, 22 (Wis. Stat. Ann. 1997-98).
SCR 22.24 (Wis. Stat. Ann. 2001-02).
SCR 22.001(3) (Wis. Stat. Ann. 2001-03). See also SCR 22.01 (6m) (Wis. Stat. Ann. 1995-96).
Justice Prosser's concurrence/dissent (agreeing with discipline but dissenting from levy of full costs; urging remand to referee for apportionment of costs without providing guidance for apportionment); OLR v. Polich, 2005 WI 36, ¶ 34, 279 Wis. 2d 266, 694 N.W.2d 367 (Prosser, J., agreeing with discipline imposed but dissenting on costs; dissenting from levy of full costs; urging remand to referee for apportionment of costs without providing guidance for apportionment; not fully subscribing to Justice Butler's methodology of apportioning costs; Butler, J, agreeing with discipline imposed but dissenting from levy of full costs; urging remand to the referee to apply a rule either that "costs associated exclusively with the unsuccessful prosecution of a [lawyer] on specific counts may not be assessed against that [lawyer]," ¶ 39 (emphasis in original) or that costs incurred in dismissed counts that are not substantially related to successfully charged counts may not be assessed against the lawyer, ¶ 42); OLR v. Trewin, 2004 WI 116, ¶¶ 53-62, 275 Wis. 2d 116, 684 N.W.2d 121 (Prosser, J., agreeing with discipline but dissenting from imposition of full costs exceeding $25,000 because some of the counts were dismissed; no statement of what would be reasonable costs or explanation of how to calculate reasonable costs, except for a reference at ¶ 56 to a reader having a hard time "keeping score" of counts proved and not proved); OLR v. Marks, 2003 WI 114, ¶ 90, 265 Wis. 2d 1, 665 N.W.2d 836 (Prosser, J., agreeing with discipline but dissenting from costs of $22,178.69 as disproportionate to seriousness of offense and as reflecting a desire by OLR to appeal the referee's finding; no statement of what would be reasonable costs or explanation of how to calculate reasonable costs); OLR v. O'Neil, 2003 WI 48, ¶ 23, 261 Wis. 2d 404, 661 N.W.2d 813 (Bablitch, Prosser, and Sykes, JJ, agreeing with discipline but dissenting from levy of full costs as excessive without explanation or discussion of what would be reasonable costs); OLR v. Webster, 2002 WI 100, ¶ 59, 255 Wis. 2d 323, 647 N.W.2d 831 (Prosser, J., dissenting from decision not to reinstate and objecting without any explanation or discussion to "whopping *303sum" of $9,121.75 costs); OLR v. Penn, 2002 WI 5, ¶¶ 15-28, 249 Wis. 2d 667, 638 N.W.2d 287 (Bablitch and Prosser, JJ., agreeing with reinstatement but dissenting from levy of full costs of $6,803.24 as seven times that levied in another matter decided the same day but under older rules; no statement of what would be reasonable costs or explanation of how to calculate reasonable costs). For further discussion of these cases, see Part III.
OLR v. Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J., concurring on discipline and dissenting on levy of full costs; urging remand to the referee to apply a rule either that *305"costs associated exclusively with the unsuccessful prosecution of a [lawyer] on specific counts may not be assessed against that [lawyer]," at ¶ 39 (emphasis in original) or that costs incurred in dismissed counts that are not substantially related to successfully charged counts may not be assessed against the lawyer, at ¶ 42)).
Justice Prosser does not fully subscribe to Justice Butler's methodology but joins in seeking a remand to the referee for an apportionment of costs. OLR v. Polich, 2005 WI 36, ¶ 34, 279 Wis. 2d 266, 694 N.W.2d 367 (Prosser, J., concurring and dissenting).
See Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, 275 Wis. 2d 1, 683 N.W.2d 58.
See O'Neil, 261 Wis. 2d 404, ¶ 23 (Bablitch, Prosser, and Sykes, JJ, agreeing with decision not to reinstate and objecting without any explanation or discussion about costs); Webster, 255 Wis. 2d 323, ¶ 59 (Prosser, J., dissenting from decision not to reinstate and objecting without any explanation or discussion to *306"whopping sum" of $9121.75 costs); Penn, 249 Wis. 2d 667, ¶¶ 15-28 (Bablitch and Prosser, JJ., agreeing with reinstatement but dissenting from levy of full costs of $6893.24 as seven times that levied in another matter decided the same day but under prior rules; no statement of what would be reasonable costs or explanation of how to calculate reasonable costs).
Justice Prosser's concurrence/dissent, ¶ 105.
Webster, 255 Wis. 2d 323, ¶ 1.
Id., ¶¶ 58-59 (Prosser, J., dissenting).
Penn, 249 Wis. 2d 667, ¶¶ 15-28 (Prosser and Bablitch, JJ., dissenting from levying of full costs).
Trewin, 275 Wis. 2d 116, ¶ 49.
Id., ¶ 62 (Prosser, J., concurring in the discipline but dissenting from the levying of full costs). In the present case; the dissent characterizes the Trewin case as over-litigated. Justice Prosser's concurrence/dissent, ¶ 107.
Trewin, 275 Wis. 2d 116, ¶ 62 (Prosser, J., concurring in the discipline but dissenting from the levying of full costs). The dissent states at ¶ 62 that it would adjust some of the costs to reflect Trewin's success in defending himself against some of OLR's charges but fails to state how it would do so.
Marks, 265 Wis. 2d 1, ¶ 44.
Id., ¶ 90 (Prosser, J., dissenting). In the present case, the concurrence/dissent characterizes the Marks case as over-litigated. Justice Prosser's concurrence/dissent, ¶ 106.
Polich, 2005 WI 36, (Butler, J., concurring in discipline but dissenting from levy of full costs; urging remand to the referee to apply a rule either that "costs associated exclusively with the unsuccessful prosecution of a [lawyer] on specific counts may not be assessed against that [lawyer]," at ¶ 39 (emphasis in original) or that costs incurred in dismissed counts that are not substantially related to successfully charged counts may not be assessed against the lawyer, at ¶ 42).
Justice Prosser does not subscribe fully to Justice Butler's methodology but joins in seeking a remand to the referee for an apportionment of costs. Polich, 2005 WI 36, ¶ 34 (Prosser, J., concurring in discipline but dissenting from levying of full costs). Justice Prosser characterizes the Polich case as over-litigated. Justice Prosser's concurrence/dissent, ¶ 108.
Polich, 2005 WI 36, ¶ 34 (Prosser, J, concurring in discipline but dissenting from levying of full costs).
Justice Prosser's concurrence/dissent, ¶¶ 105-108. The four cases are O'Neil, Marks, Trewin, and Polich.
Justice Prosser's concurrence/dissent, ¶¶ 103-104.
Id., ¶ 111.
On what basis then does the dissent charge that under the present cost structure the OLR is not accountable "in terms of overcharging, over-litigating, or failing to prove its case"? Justice Prosser's concurrence/dissent, ¶ 100.