Disciplinary Proceedings Against Konnor

DAVID T. PROSSER, J.

(concurring in part, dissenting in part).

¶ 93. I agree with the public reprimand of Attorney Chris K. Konnor but dissent from the court's decision to levy the full cost of the disciplinary proceeding against him.

¶ 94. In this case, Attorney Konnor offered to stipulate to a public reprimand on the counts filed. The Office of Lawyer Regulation (OLR) rejected his offer, asking a referee to recommend the more stringent sanction of a 90-day license suspension. After a hearing, the referee recommended a public reprimand, and that is the sanction approved by this court. Nevertheless, the court imposes the full cost of prosecuting the case, meaning that Attorney Konnor is required to pay the cost of OLR's unsuccessful effort to secure a higher sanction.

¶ 95. The majority attempts to cushion this determination with an explanation that our court has asked the Board of Administrative Oversight to review the assessment of costs in attorney discipline cases and to present proposals for reform in the future. Until then, the court appears committed to eschewing its discretion under SCR 22.24(1) (2002) and assessing full costs to disciplined attorneys, irrespective of the merit in their arguments. This necessitates comment.

¶ 96. The lawyer regulation system exists "to carry out the supreme court's constitutional responsibility to supervise the practice of law and protect the

I-H *318public from misconduct [and incompetence] by persons practicing law in Wisconsin." SCR 21 Preamble. The Office of Lawyer Regulation has been given the lead role in investigating and prosecuting attorney discipline cases. OLR does vital work for our court and the public, and it enjoys the confidence and support of the full court.

¶ 97. This cannot mean, however, that OLR is unaccountable. The Wisconsin Supreme Court should not be expected to rubberstamp every determination made by other players in the lawyer regulation system. This court has the final word on attorney discipline and discretion whether to impose "all or a portion of the costs of a disciplinary proceeding," SCR 22.24(1), or a reinstatement proceeding. SCR 22.29(5). At present, the court has been unwilling or unable to formulate a set of principles to assist in exercising this discretion.

H-d HH

¶ 98. "Under the American Rule, the parties to a lawsuit bear the cost of their own attorney fees absent legislative authorization to shift costs." Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, ¶ 17, 275 Wis. 2d 1, 683 N.W.2d 58 (citing Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't ofHealth & Human Res., 532 U.S. 598, 602 (2001); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Kremers-Urban Co. v. Am. Employers Ins. Co., 119 Wis. 2d 722, 744, 351 N.W.2d 156 (1984)). The Wisconsin legislature has authorized courts to shift costs and award attorney fees to successful litigants in a number of specific situations.

¶ 99. In addition, the legislature has authorized parties to a lawsuit to make settlement offers as a means to promote settlements and control costs. Wis. *319Stat. 807.01 (2003-04).1 For instance, a defendant may serve upon a plaintiff an offer of judgment to be taken against the defendant, and "If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint." Wis. Stat. 807.01(1).

¶ 100. The lawyer regulation system does not follow the American Rule. In attorney discipline cases, this court is imposing full costs on a respondent attorney even when the attorney has been partially or substantially successful or OLR has failed to recover "a more favorable" determination than the attorney offered. With very rare exceptions, the only time an attorney escapes the imposition of full OLR costs is when the attorney secures dismissal of all OLR counts. Even in these cases the attorney must shoulder his or her own expenses. The effect of this practice is to eliminate virtually all accountability for OLR in terms of overcharging, over-litigating, or failing to prove its case.

¶ 101. SCR 22.24(1) provides that the supreme court may assess all or a portion of the total costs of a disciplinary proceeding to a respondent attorney. Thus, the assessment is not mandatory. When a respondent attorney prevails on many or most issues in a case but is assessed the total costs of the proceeding, the attorney does not receive the benefit of the discretion that is built into the rule.

Ill

¶ 102. In recent years, I have repeatedly expressed concern about the costs imposed in attorney *320discipline cases. See OLR v. David V. Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287; OLR v. Leslie J. Webster, 2002 WI 100, 255 Wis. 2d 323, 647 N.W.2d 831; OLR v. James Paul O'Neil, 2003 WI 48, 261 Wis. 2d 404, 661 N.W.2d 813; OLR v. Marvin E. Marks, 2003 WI 114, 265 Wis. 2d 1, 665 N.W.2d 836; and OLR v. Michael G. Trewin, 2004 WI 116, 275 Wis. 2d 116, 684 N.W.2d 121. The circumstances in these cases varied substantially, but the result was always the same: full costs to the attorney.

¶ 103. At least twice, in Penn and Webster, OLR utilized procedures that increased costs. In Penn, the attorney sought reinstatement before the restructuring of the lawyer discipline system, but regulators held up his case until he became ineligible for review by a district professional responsibility committee. Although no one opposed the attorney's reinstatement, his case was assigned to a referee, and OLR retained counsel. The attorney was forced to pay the increased costs, plus the cost of litigating issues under OLR's new rules. The total assessment was more than $6800.

¶ 104. In Webster, the court imposed more than $9100 in costs on an attorney who sought but failed to gain reinstatement. OLR first rejected the favorable recommendation of a district professional responsibility committee, then insisted on repeating the reinstatement review process under the referee system to obtain a different recommendation. The attorney was finally reinstated in 2004, after incurring additional costs of $5300.

¶ 105. Several cases appear to have been over-litigated. For example, in O'Neil, the attorney was given a public reprimand. Although the referee concluded that the attorney "cooperated fully with the OLR" and *321showed a cooperative attitude toward the proceedings, he was assessed costs of more than $11,400.

¶ 106. In Marks, OLR waited almost three years after a grievance was made before it filed a complaint. Then it pursued the case adamantly. To illustrate, the referee dismissed two counts involving alleged violations of another state's rules. OLR appealed and prevailed before this court, hut its victory added nothing to the attorney's discipline, only his costs. The assessed costs for a 60-day suspension exceeded $22,000.

¶ 107. In Trewin, OLR filed 12 counts of misconduct against the attorney. Some of these counts alleged multiple violations against multiple clients. The attorney did not dispute some counts, challenged portions of other counts, and resisted more than he might have if the desired discipline had not been so severe.2 He succeeded in defeating parts of several counts, securing total dismissal of one count, and winning a significant reduction in the recommended discipline, but was required to pay the entire cost of the proceeding which amounted to more than $25,000.

¶ 108. In another case decided today, OLR v. Steve J. Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367, *322the attorney is given a public reprimand after beating back five of seven counts filed by OLR, as well as OLR's recommendation of a nine month suspension. He is nonetheless required to pay the full cost of $17,500. Again, the court declines to apportion costs by exercising its discretion.

IV

¶ 109. In my view, these cases demand a serious review of procedures in the lawyer regulation system. The overriding question for me is whether practices and procedures in the system can be revised to achieve the system's goals at less cost and greater fairness to all parties.

¶ 110. It should be noted that some attorneys have tenaciously fought OLR discipline, at enormous expense, without justification. I have no difficulty assessing these attorneys with full costs (although I am somewhat skeptical whether the costs assessed are always paid). If assessed costs in these cases are not paid, OLR is put under tremendous pressure to seek full costs in situations where full costs may not be justified. There should thus be broad interest in revising procedures in the system in ways that will benefit OLR as well as the affected attorneys.

¶ 111. Several policy questions should be addressed. First, what standards should OLR employ when it notifies an attorney what discipline it intends to seek and when, if ever, should the desired sanction be revised?3 Second, can the lawyer regulation system make increased use of stipulations, partial summary *323judgments, and other means to narrow disputes and hold down costs? Third, is there a place for plea agreements in the lawyer regulation system? Fourth, should this court authorize both parties to make offers of settlement similar to the offers under Wis. Stat. § 807.01? Fifth, if plea agreements or offers of settlement are not permitted, should the court establish standards that will discourage overcharging and over-litigating discipline cases? Sixth, what factors should this court consider when a disciplined attorney moves to reduce full costs? Seventh, should the'court consider financial penalties like forfeitures, apart from costs, as one option in attorney discipline cases?

V

¶ 112. In his concurrence in the Polich case, Justice Butler suggested that the case be remanded to the referee for a reasonable apportionment of costs. I believe similar action is warranted here. Referees are usually better positioned than this court to make an initial determination of appropriate costs.

VI

¶ 113. The concurrence of the Chief Justice responds to the first five sections of this concurrence/dissent. It criticizes my alleged failure in previous writings to propose a formula for apportioning costs4 and concludes that until appropriate standards *324and criteria are adopted, this court will continue to impose all reasonable costs incurred in a disciplinary proceeding against a disciplined attorney and will not reduce costs on an ad hoc basis. See Chief Justice Abrahamson's concurrence, ¶ 56.

¶ 114. The question of how to assign costs in attorney discipline cases is not an easy one. In all likelihood, there is no single all-purpose answer. My failure to propose a solution does not absolve the court of its duty to seek a solution. It would be a mistake to assume that nó one outside of our chambers cares about the attorney cost issue.

All references to the Wisconsin Statutes are to the 2003-04 version, unless otherwise noted.

In my opinion in the Trewin case, I stated that "the complaint against Trewin at the outset was so open-ended that he had no idea what discipline OLR was seeking, or what the potential consequences would be if he simply conceded every count." OLR v. Michael G. Trewin, 2004 WI 116, ¶ 57, 275 Wis. 2d 116, 684 N.W.2d 121 (Prosser, J., concurring/dissenting). In retrospect, I must acknowledge that that statement is not correct. The complaint, dated December 12, 2002, asked that "the Court impose discipline commensurate with the severity of Trewin's misconduct," but OLR apparently advised Trewin in another document that it was seeking a one-year suspension. This discipline turned out to be more than twice the discipline recommended by the referee.

Under present practice, the OLR staff, especially the director, determines the level of discipline to be sought. As I understand it, the OLR's retained counsel are not permitted to *323negotiate any change in OLR's recommended discipline with the respondent attorney or the attorney's counsel without approval from the director.

I acknowledge that I have never proposed a specific formula for apportioning costs. Instead, I urged colleagues to address the issue collectively. These requests eventually led to *324the court's request for input from the Board of Administrative Oversight. In OLR v. Steve J. Polich, 2005 WI 36, 279 Wis. 2d 266, 694 N.W.2d 367, I joined Justice Butler in suggesting that the referee be delegated authority to apportion costs.