¶ 44. (concurring in part, dissenting in part). I concur in the court's per curiam opinion relating to the Code violation and the discipline. I dissent from the court's decision to reduce the costs imposed on Attorney Frisch.
¶ 45. The court's opinion reducing the costs to be imposed ignores the applicable rule on costs, the facts of this particular case, and the court's precedents regarding the imposition of costs. When those items are properly considered, the only reasonable conclusion is that the case does not present "extraordinary circumstances" that would justify a reduction in the costs assessed against Attorney Frisch, whose misconduct was the reason for this disciplinary proceeding. Consequently, I dissent from the portion of the court's opinion regarding the imposition of costs.
¶ 46. The Rule on Costs: As the majority opinion notes, this court's general rule regarding the imposition of costs is to impose all of the costs of a disciplinary proceeding on the respondent attorney whose conduct necessitated the proceeding unless there are "extraordinary circumstances." SCR 22.24(lm).
¶ 47. SCR 22.24(lm) was adopted in 2006.1 1t has an interesting history that should inform the imposition of costs in the present case. Much of the history leading up to the adoption of the 2006 rule is described in my concurring opinion in In re Disciplinary Proceedings Against Konnor, 2005 WI 37, 279 Wis. 2d 284, 694 N.W.2d 376.
*147¶ 48. Until 1999, the court had levied less than full costs on the disciplined lawyer in only one case. Beginning in 1999, numerous dissents varying "in length, vigor, and vitriol, as is each justice's prerogative"2 were filed, objecting to the imposition of full costs on the disciplined lawyer and instead favoring the shifting of these costs from the disciplined lawyer to the members of the bar. The dissents, except those favoring the levying of costs on the basis of counts proved,3 offered no principles, criteria, or guidelines to assist the court in fairly and equitably exercising its discretion to levy less than full costs.
¶ 49. The continuing controversy among the justices about the imposition of costs on disciplined lawyers resulted in the court's requesting that the Board of Administrative Oversight, in conjunction with the State Bar, develop a comprehensive approach regarding the assessment of costs in OLR matters for the court's consideration. A petition for a rule regulating the imposition of costs4 was filed and a survey of the bar on the issue was undertaken.5
*148¶ 50. The rule proposed, but not adopted by the court, was that after the referee's report was filed, the OLR would submit to the referee the statement of costs, the respondent lawyer would file an objection, if any, and the OLR would then file a rebuttal. The referee would recommend to the court the costs to be imposed on the lawyer after considering factors including "(a) the number of counts charged, contested and proven; (b) the severity of counts charged, contested and proven; (c) the level of discipline sought by the parties and recommended by the referee; (d) the respondent's cooperation with the disciplinary process; and (e) the respondent's ability to pay." The supreme court was to consider the submissions of the parties and the recommendation of the referee.
¶ 51. After a public hearing and open administrative conference, this proposed rule was NOT adopted by the court. The court refused to delegate to the referees the tasks of determining the imposition of costs or making recommendations about costs to the court. The court had sound reasons for this position. Referees do not know the full costs and attorney fees when the referees file their reports. The referees do not have a statement of the attorney fees and cannot evaluate to *149what issues the attorneys devoted time. Furthermore, the imposition of costs and fees by a single court would provide uniformity.
¶ 52. The "cost controversy" among the members of this court culminated in the adoption of the present rule, over the dissents of Justices Prosser, Butler, and Roggensack.
¶ 53. Nevertheless, referees continue to make recommendations about costs. Indeed in the present case, the referee recommended that no costs be assessed to the attorney. The referee's full discussion about costs, without the benefit of OLR's statement of costs, is as follows: Attorney Frisch "admitted the factual allegations underlying Counts One and Two of OLR's complaint and has not disputed that those facts establish the violations asserted in those counts. It is recommended that Count Three be dismissed. Under these circumstances, Frisch should not be required to pay OLR's costs and attorney fees in this matter. See, e.g., In re Disciplinary Proceedings Against Young, 2006 WI 109, ¶¶ 21-22, 296 Wis. 2d 36, 718 N.W.2d 717."6 The referee made no reference to "extraordinary circumstances."
¶ 54. The court, including the dissenters, must follow the plain language of the rule adopted. The rule *150the court adopted clearly sets forth the "general policy . . . that upon a finding of misconduct it is appropriate to impose all costs, including the expenses of counsel for the office of lawyer regulation" upon the disciplined attorney. The rule further explains that in cases involving "extraordinary circumstances," the court may exercise its discretion to reduce the amount of costs and fees imposed on the disciplined attorney. The rule then lists several factors to guide the court's imposition of costs after the court finds "extraordinary circumstances."
¶ 55. To impose less than full costs on the lawyer disciplined, the court must first find extraordinary circumstances.
¶ 56. The majority fails to explain what the "extraordinary circumstances" are in the present case. The rule does not define "extraordinary circumstances." In interpreting statutes, rules, and other documents, the court is very fond of examining the dictionary to define words. "Extraordinary" is defined in the dictionaries as meaning beyond what is ordinary and usual; the word means "not usually associated with" the subject being discussed.
¶ 57. The phrase "extraordinary circumstances" clearly requires the presence of factors that are not present in many disciplinary proceedings even though the phrase is incapable of being defined in a manner that encompasses all possible scenarios. The majority opinion fails to demonstrate facets of the present disciplinary proceeding that are not often found in disciplinary cases.
¶ 58. It is not extraordinary or unusual for the OLR to prosecute all misconduct counts for which the Preliminary Review Committee found "cause to proceed" and for the referee to conclude that one or more *151counts are not proved. It is not extraordinary or unusual for a prosecutor to be unable to prove all counts even after a finding of probable cause. There is no claim in the present case that the counts alleged by the OLR were wholly without prosecutorial merit or that OLR's pursuit of Count 3 was unreasonable, improper, or frivolous.
¶ 59. The majority is interpreting and applying the rule as if the court had adopted the substance of the rule originally proposed and defeated. If the majority wants to change the rule the court adopted, the majority has to do so using our rule-making function, our quasi-legislative function, not our case deciding function. The court is amending rules in an adjudication. That's a no-no.
¶ 60. At bottom, the instant proceeding arose out of Attorney Frisch's conduct. The rule adopted appropriately declares that the disciplined lawyer should bear to the extent he or she is able, except under extraordinary circumstances, the costs and attorney fees of the proceeding rather than the court transferring the costs to the other attorneys in the state who have not engaged in misconduct.
¶ 61. The court is ignoring the plain text of SCR 22.24(lm), skipping over the need to find "extraordinary circumstances," and going straight to the factors that guide the court in imposing costs once the court has found extraordinary circumstances.
¶ 62. The court order adopting the rule on costs provides for court review of the rule in the fall of 2010. That will be the time to change the rule, if a majority of the court wishes to do so. The rule should not be changed in this case.
¶ 63. $1,500 Fee Not Based on Record: Before I turn to the factors the court applies, I must point out *152that the majority opinion imposes $1,500 costs on Attorney Frisch. No explanation is given for this number. The number is not related to anything in the record. How does this jibe with our numerous opinions saying that a court should explain its exercise of discretion?
¶ 64. Just as the $1,500 has no basis in the record, the factors upon which the majority opinion justifies its reduction of costs have no basis in the record.
¶ 65. Reduced Costs Not Justified: First, the majority opinion states that Attorney Frisch conceded Counts 1 and 2. This statement is only partially true, misrepresents the record, and is misleading. As the OLR points out, Attorney Frisch's answer to the OLR's complaint admitted only some of the facts underlying Counts 1 and 2. His answer demanded dismissal of the complaint in its entirety. Moreover, Attorney Frisch's own objection to costs also indicates that the issues surrounding Counts 1 and 2 were not fully resolved even after a factual stipulation had been reached prior to the disciplinary hearing. In his objection to costs, Attorney Frisch states that the stipulation "included substantially all of the facts on which OLR based Counts [1] and [2] of its complaint," and that at the hearing the OLR had "largely devoted its case to attempt to prove up Count [3]" (emphasis added).
¶ 66. Thus, while Attorney Frisch may have conceded misconduct under Counts 1 and 2 by the end of the disciplinary hearing, his answer and cost objection undermine the majority's assertion that in the absence of Count 3 he would have entered into a comprehensive stipulation that would have avoided the necessity of the appointment of a referee and the incurring of legal fees by the OLR. His answer indicates that even in the absence of Count 3, costs would have been incurred by *153the OLR and a referee. Consequently, the majority's citation to the Nussberger and Young cases, in which no costs were imposed because the respondent attorney entered into a comprehensive stipulation at the beginning of a disciplinary proceeding, does not demonstrate that this case presents "extraordinary circumstances" justifying a reduction in costs.
¶ 67. Second, the majority points to the fact that Attorney Frisch prevailed on Count 3, which alleged a violation of SCR 20:8.4(c) and on which the bulk of the disciplinary hearing clearly focused. Merely prevailing on one or more of the counts alleged in a disciplinary complaint, however, is not sufficient to support a reduction or proration of costs.
¶ 68. Indeed, even when a respondent attorney has prevailed on five out of seven counts, we have refused to depart from our practice of assessing full costs against a respondent attorney who has been found to have engaged in some professional misconduct. See In re Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶ 29-30, 279 Wis. 2d 266, 694 N.W.2d 367. Moreover, as was the case in Polich, there is no indication that Count 3 in this case was without prosecutorial merit or that the costs incurred by the referee and the OLR in this matter were unreasonable or unnecessary. The bottom line is that Attorney Frisch prevailed on one count, but was found to have committed the misconduct alleged in two other counts. This does not qualify as an "extraordinary circumstance."
¶ 69. In addition, while Attorney Frisch is to be commended for seeking treatment for his alcohol dependence and for paying for a significant portion of that treatment out of his own funds, his expenditure of substantial sums for treatment does not address who should be responsible for the costs incurred in this *154disciplinary proceeding — either Attorney Frisch or the general membership of the bar in this state (through annual assessments). Since it was the misconduct of Attorney Frisch that caused the necessity of this disciplinary proceeding and the concurrent expenditure of time and money, I cannot conclude that his expenditure of personal funds for other reasons, even if commendable, should excuse him from responsibility for the costs of this disciplinary proceeding, with the result that those costs will be shifted to the other attorneys of this state.
¶ 70. Precedent Contrary to Reduction of Costs: In the present case, Attorney Frisch was found to have committed misconduct on two of the three original counts. In several cases, one or more counts are dismissed and the full costs are imposed. This case therefore is simply a matter of an attorney prevailing on one count while being found to have committed misconduct on other counts. That is not an "extraordinary circumstance," and the court should follow its general policy of imposing full costs. The costs of the proceeding against the attorney should not be foisted upon the lawyers in the state of Wisconsin.
¶ 71. For the foregoing reasons, I concur in part and dissent in part.
¶ 72. I am authorized to state that Justices ANN WALSH BRADLEY and N. PATRICK CROOKS join this opinion concurring in part and dissenting in part.See In the Matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System, S. Ct. Order 05-01, 2006 WI 34, 287 Wis. 2d xiii (eff. May 1, 2006).
In Disciplinary Proceedings Against Konnor, 2005 WI 37, ¶ 53, 279 Wis. 2d 284, 694 N.W.2d 376.
For Justice Butler's recommendation allocating costs on the basis of counts proved, see In the Matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System, S. Ct. Order 05-01, 2006 WI 34, 287 Wis. 2d xiii (eff. May 1, 2006) (Butler, J., dissenting).
In the Matter of the Petition for Amendment to Supreme Court Rules relating to Cost Assessments in the Lawyer Regulation System, S. Ct. Order 05-01, 2006 WI 34, 287 Wis. 2d xiii (eff. May 1, 2006).
The results of the 2005 Bench Bar Survey relating to the allocation of costs in attorney discipline cases are as follows:
*148Most respondents split between continuing the current assessment policy (37%) and permitting apportionment of costs (36%). Another 17% feel the Court should adopt the "English Rule," 9% feel it should it should adopt the "American Rule," and a handful of respondents checked a combination of methods. Nearly one-half (47%) of judges feel the Supreme Court should continue its current assessment policy, while lawyers split between permitting apportionment of costs (37%) and continuing the current policy (33%).
Executive Summary, State Bar of Wisconsin 2005 Bench-Bar Survey, at 5 (available at http://www.wisbar.org/AM/ Template.cfm?Section=Research_and_Reports&TEMPLATE=/ CM/ContentDisplay.cfm&CONTENTID=57903).
The referee's reliance on Disciplinary Proceedings Against Young, 2006 WI 109, ¶¶ 21-22, 296 Wis. 2d 36, 718 N.W.2d 717, is misplaced. In that case, Attorney Young, the respondent lawyer, entered into a full stipulation with the OLR regarding the facts, the violation of the code, and the discipline. A referee had been appointed before the stipulation was executed. The OLR did not seek to impose costs on Attorney Young. The referee recommended imposing costs on the lawyer. This court concluded that under those circumstances no costs should be imposed on Attorney Young.