¶ 37. (concurring). It seems to me that there's more to this case — and less to this case — than meets the eye. As I studied the case, three texts kept coming to mind.
¶ 38. First, I recalled a decision by my wise former law partner, Federal District Court Judge James E. Doyle, sentencing Ben Masel for spitting in the face of U.S. Senator Henry M. Jackson at the Dane County Regional Airport in Madison, Wisconsin, on March 30, 1976. Masel was demonstrating his disapproval of the Senator's alleged relationship with the armament industry.1 Judge Doyle wrote that he pondered whether to treat the crime as a minor, petty offense or as an important case. Judge Doyle decided to sentence Masel to 15 days in jail, concluding that Masel deserved "a pinch of deserved condemnation for an ignoble, small performance."2
*280¶ 39. The other two texts were cartoons about lying and honesty. The cartoon about lying is cynical: A father, while driving the family car, says to his young son, "Everyone lies, son, but there are different pay scales."3
¶ 40. The cartoon about honesty is more philosophical: A father, sitting in his easy chair in the living room, says to his young son, "Honesty is a fine quality, Max, but it isn't the whole story."4
¶ 41. This case, which raises issues addressed in the three texts, bothers me.
‡ ‡ ‡
¶ 42. Old hands on appellate courts look into each other's eyes, knowingly nod, and wisely say, "garbage in, garbage out." This short-hand phrase means that judges rely on lawyers to keep us informed about a case. Sure, judges (and law clerks) do research and read the record, but the better the briefs and the better the oral argument, then the better the chances are for a good, sound decision. That is why lawyer competence and candor are so important to the proper working of the legal system.
¶ 43. The per curiam opinion in the present case puts it more grandly: "[Cjandor toward the tribunal is central to the truth-seeking function of any court. . . . This court makes its decisions, albeit tentatively, immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions."5
*281¶ 44. Whether cast in colloquial or grand terms, this case touches on the importance of providing accurate information to the courts.
¶ 45. Kalal's comments, which are the subject of this disciplinary proceeding, were uttered when he was arguing the Smythe case before this court on November 11, 1998.6 The questions asked at oral argument in Smythe were about sanctions and warnings in prior cases. These questions and Kalal's subsequent responses, quoted in the per curiam opinion, were not material, to the decision in Smythe.
¶ 46. The issue before the supreme court in Smythe was whether Judge Dykman could penalize Smythe on the basis of Kalal's conduct in other cases. When Kalal requested a five-day extension from the court of appeals to file his appellate brief in Smythe (the first request for an extension in that case), Judge Dykman (sitting as a single judge) dismissed the Smythe appeal on the ground that Kalal had repeatedly requested time extensions in other prior cases not involving the Smythe case. This court held that Kalal's conduct in other cases was not relevant to whether Smythe should be dismissed and that the court of appeals had erred in dismissing Smythe.7
¶ 47. As Kalal's brief in this disciplinary matter puts it, "This Court took the Smythe case to decide that issue [about using Kalal's motions in other cases as grounds to dismiss Smythe]. It didn't take the case to *282express an opinion about the conduct of either [the] lawyer or appeals court judge."8
¶ 48. Supreme Court Rule 20:3.3 appears to allow zero tolerance for false statements of fact or law regardless of their materiality. But shouldn't materiality play a role in determining the discipline to be imposed?
¶ 49. So what is the false statement of fact in the present case? According to the per curiam opinion, Kalal misstated two facts: (1) His statement that his firm had been sanctioned in only one case was false. See per curiam op. at ¶ 11. (2) His statement that his firm had not been warned in the Mosel case was false. See per curiam op. at ¶ 12.
¶ 50. This is the entire case against Kalal.
¶ 51. Kalal claims that he gave an accurate response to Justice Crooks' question, which was about late filings. Justice Crooks' question did not, according to Kalal, relate to motions to extend the time for filing a brief. See per curiam op. at ¶ 19. Lame excuse? Or plausible' explanation?
¶ 52. The per curiam opinion shies away from the referee's finding that Kalal's response to Justice Bablitch was false, but uses Kalal's response to Justice Bablitch to reinforce the referee's findings regarding the two falsehoods to Justice Crooks. The per curiam opinion declares that while Kalal's response to Justice Bablitch "standing alone, would perhaps not support a finding that former SCR 20:3.3 was violated, it reinforces the conclusion that Attorney Kalal's answers to Justice Crooks' questions were false and knowingly made."9
*283¶ 53. So the disciplinary decision in the present case rests on Kalal's misstating two facts that were not central to the oral argument in Smythe. There are fine lines here: Forgetfulness is okay. Spin is okay. False statements of facts, material or not, are not okay.
¶ 54. Another referee might have been persuaded that Justice Crooks' question was not clear enough or could have been interpreted in a different way or that Kalal had forgotten at the Smythe oral argument that two and one-half years earlier $100 sanctions were imposed in two cases. However, a different view of the facts is not important because this referee's finding is determinative. Applying a standard of review that gives deference to the referee's findings, I must conclude that the statements were knowingly false. But don't the nature and frequency of the false statements play a role in determining the discipline to be imposed?
¶ 55. Courts also have an obligation to state the facts accurately. In an August 14, 1996, order and in a September 18, 1996, order, the court of appeals concluded that after February 1996, it "imposed a monetary penalty against [Kalal] several times for failure to file a brief timely." (Emphasis added.)
¶ 56. However, the record before this court shows that only two — not several — monetary penalties were imposed from February 1996 to September 18, 1996. It is possible that the full record of Kalal's 1996 motions and sanctions was not introduced into evidence and that the court of appeals' assertion of several monetary sanctions may be correct. Trivial observation? Irrel*284evant? Perhaps. But my point is simple: Courts as well as lawyers must use care to state the facts accurately. And we all err.
¶ 57. What is to be done in the future? Apparently the court of appeals concluded that Kalal had asked for too many extensions of time to file appellate briefs. The court of appeals therefore announced that it would examine Kalal's requests differently from the way it examined other attorneys' requests. It will be interesting to see whether the practice of singling out an attorney for special, personal treatment for his or her motions continues. Perhaps Smythe puts an end to the court of appeals using special rules to deal with the motions presented by a particular attorney, rather than deciding each motion in each case on its merits.
¶ 58. But let's look at the bigger picture. Smythe is but one case and Kalal is but one lawyer in a vast sea of motions seeking an extension of the time allowed for filing briefs. These motions are a growing cottage industry. Approximately 3500 new appeals are filed in the court of appeals each year. In 1996, 1,960 motions for extension of time were filed in the court of appeals, and in 1997, 2,056 such motions were filed.10 Although these motions were not exclusively motions to extend the time for filing briefs, a random sampling of 11% of the 1996 motions by the office of the clerk of the court of appeals indicates that 95% were requests for extensions of time for filing briefs. A similar sampling of 9% of the 1997 motions indicates that 85% were requests for extensions of time for filing briefs.
¶ 59. A conservative estimate that 80% of the motions for extension filed in the court of appeals are *285requests to extend the time for filing briefs means that the court of appeals receives approximately 1600 such motions a year, over 130 a month, to extend the time for filing briefs. Only an insignificant number and percentage of these are attributable to Kalal or his firm!
¶ 60. That's a lot of paper in and out of the office of the clerk of the court of appeals. And that's a substantial amount of staff time devoted to motions to extend the time for filing briefs. Does extending the time for filing briefs delay or interfere with decision-making in the court of appeals?
¶ 61. Perhaps the court of appeals should consider a change in its procedures to reduce staff time used for this purpose and to reduce conflicts with attorneys about these motions. The court of appeals might publish its procedures for granting and denying these motions so that its procedures are clear to all attorneys. And this court, with a much smaller motion practice, should consider doing the same.
¶ 62. Back to the present and this case. So what to do about this case? Is it petty or important? Lying at different pay scales? Honesty not the full story? No discipline? Private reprimand? Public reprimand? Suspension?
¶ 63. I am going along with the court's imposition of a public reprimand rather than a private reprimand in this matter, but not without some misgivings. This case makes me very uncomfortable.
WILLIAM A. BABLITCH, J.¶ 64. {concurring). In nearly 19 years on this bench, I have been privileged to hear many outstanding attorneys argue forcibly and well for their clients. Perhaps I am naive, but I have never felt, until this case, that an attorney has deliberately misled or lied to our court.
*286¶ 65. I would have opted for a harsher penalty, but my colleagues did not agree. I bend to their wisdom.
¶ 66. I am concerned that Mr. Kalal still doesn't get it. At various times throughout his briefs, Kalal repeatedly points accusing fingers at the appeals court judge and at the referee. Mr. Kalal would be well advised to reconsider and take a long look at himself. His defense, technical to the extreme, amounts to no defense at all. He is obviously a bright, intelligent, articulate attorney, capable of representing his clients ably. He does himself, this court, and the bar a disservice by this conduct.
¶ 67. I am authorized to state that Justice N. PATRICK CROOKS joins this opinion.
DAVID T. PROSSER, J.¶ 68. (concurring). I join the per curiam opinion without reservation. I write separately to address a gap in this court's analysis that ought to be explained.
¶ 69. On January 2, 1998, the court of appeals denied Attorney Kalal's motion to extend the time for filing a brief and dismissed the appeal of Kalal's client, Ralph Smythe, because his brief was not timely filed. See State v. Smythe, 225 Wis. 2d 456, 460, 592 N.W.2d 628 (1999). In a second order dated January 9,1998, the court of appeals denied a renewed motion to extend time. Id. at 461. This court later granted a petition for review, and we heard oral argument in the Smythe case on November 11, 1998. Id. at 456. Attorney Kalal's representations to the court in that oral argument are the source of this disciplinary proceeding. Per curiam op. at ¶ 6.
¶ 70. The per curiam opinion states that "[D]ur-ing the two years preceding the Smythe case, the court of appeals penalized or strongly cautioned Attorney *287Kalal or his firm for excessive extension motions in orders issued in the following cases[.]" The opinion then describes seven cases dating from February 14, 1996, to October 15, 1996. Id. at ¶ 9. However, the opinion lists no cases between October 15, 1996, and Kalal's December 29, 1997, motion in the Smythe case, a gap of 14 months.
¶ 71. The opinion cites no cases from this 14-month period because no case was disclosed in the record presented to this court. However, no inference should be drawn that Attorney Kalal made no extension requests during this period or that he was not admonished by the court of appeals during this period.
¶ 72. In its January 2, 1998, order in the Smythe case, the court of appeals said:
Appellant's counsel's firm has a long history of extension motions in this court, and we have in the past issued stern warnings and taken other actions to attempt to reduce their number. We have noted the toll these motions take on this court's time and resources. We have advised counsel that extension motions based on counsel's heavy workload fail to make the showing of good cause required by Rule 809.82(2), Stats., when they become routine. In the past, such motions were routine. For much of this past year, counsel's firm has been reasonable in its requests for extensions. However, we have again noted an increase in such motions. That increase, combined with this motion's complete absence of any showing of why the brief could not be completed during the five weeks before counsel's vacation, leads us to conclude that good cause has not been shown. Therefore, we deny the motion.
See Smythe, 225 Wis. 2d at 460 (emphasis added).
¶ 73. In his renewed motion for extension in early 1998, Kalal acknowledged that he had filed 15 motions for extension in 1997. See id. at 461.
*288¶ 74. At my request, this court independently examined public records of Kalal's 1997 extension motions to determine the basis for the court of appeals' stated concern. We discovered that Kalal filed an extension motion in December 1997 in State of Wisconsin ex rel. Ronald E. Patten v. David H. Schwartz, No. 97-2927. This motion resulted in a December 26, 1997, order allowing an extension but imposing a financial penalty of $100 on Kalal because good cause for delay had not been shown. On or about December 29, 1997, Kalal filed a motion to extend time in In re Refusal of James P Sullivan: Dane County v. James P Sullivan, No. 97-2143. This motion was denied in an order dated January 2, 1998.
¶ 75. These two cases were fresh in the mind of the court of appeals when it issued its Smythe orders in January 1998. The Patten case was clearly covered by Justice Crooks's question later in the year.
¶ 76. The two cases found outside the record have had no bearing whatever on the discipline imposed here. They are included in this concurring opinion solely to explain the apparent gap in this court's analysis. It would not be fair for this court to place the court of appeals in a false light by failing to explain what actually transpired during the 14-month period.
United States v. Masel, 563 F.2d 322 (7th Cir. 1977).
A Pinch of Deserved Condemnation, Capital Times, Jan. 5, 1977 (a complete text of Judge Doyle's sentencing statement).
Donald Reilly, The New Yorker, Feb. 18 & 25, 2002, at 160.
Robert Weber, The New Yorker, March 18, 2002, at 124.
Per curiam op. at ¶ 1.
State v. Smythe, 225 Wis. 2d 456, 592 N.W.2d 628 (1999).
"[A] court of appeals decision to dismiss an appeal may be reversed when there is compelling evidence that that court based its decision, in part, on the past practices of counsel in unrelated matters." Smythe, 225 Wis. 2d at 459.
Kalal's Brief at 23.
Per curiam op. at ¶ 28. The per curiam opinion further states: "Kalal's colloquy with Justice Bablitch during the *283Smythe oral argument was, if not patently false, at least knowingly misleading." See per curiam op. at ¶ 27.
Wis. Stat. §809.82 (1999-2000). See also Smythe, 225 Wis. 2d at 466.