¶ 72. {concurring in part, dissenting in part). I join the per curiam's decision and order as to the discipline imposed in this action. I write separately because I disagree with the court that full costs should be imposed in this case. Because Attorney Backes was absolved of any allegations of misconduct in both the C.D. and D.M. matters, I would not assess any costs for the counts associated with those complaints.
¶ 73. On December 5, 2002, Attorney Backes was charged with 15 disciplinary violations stemming from five separate client matters. Ultimately, the referee concluded that Attorney Backes had committed misconduct in connection with nine of the 15 counts concerning three separate client matters. We accept the referee's findings of fact and conclusions of law with respect to the disciplinary proceedings.1 Those findings include a determination that Attorney Backes did not commit misconduct with respect to his handling of the D.M. matter contained in counts five through eight of the complaint,2 and that he did not commit misconduct with respect to his handling of the C.D. matter contained in counts 11 and 12 of the complaint.3
¶ 74. Given our determination, we must now determine the appropriate discipline for the professional misconduct found. As the per curiam opinion indicates, we consider a variety of factors, including the serious*22ness, nature, and extent of the misconduct; the level of discipline needed to protect the public, the courts, and the legal system from repetition of the lawyer's misconduct; the need to impress upon the attorney the seriousness of the misconduct; and the need to deter other attorneys from committing similar misconduct. Per curiam op., ¶ 53. See also Disciplinary Proceedings Against Charlton, 174 Wis. 2d 844, 876, 498 N.W.2d 380 (1993). In considering these factors, the critical term used in the evaluation is "misconduct." Where no misconduct occurs, by definition nothing serious has happened. Where no misconduct occurs, the public, courts, and legal system are not in need of protection from its repetition. Where no misconduct occurs, there is no need to impress upon the attorney the seriousness of a nonexistent violation. Where no misconduct occurs, the need to deter other attorneys is absent.
¶ 75. We have determined that Attorney Backes has committed nine counts of misconduct against three different clients. Of course, he should be held responsible for the costs of the proceeding with respect to these counts, as well as the restitution ordered by the court. Per curiam op., ¶ 56. He did not commit any misconduct with respect to C.D. and D.M., however.
¶ 76. For the reasons stated in my concurring in part, dissenting in part opinion in In re Disciplinary Proceedings Against Polich, 2005 WI 36, ¶¶ 39-40, 279 Wis. 2d 266, 694 N.W.2d 367, I would adopt a "substantially related" approach to ordering costs in Office of Lawyer Regulations ("OLR") proceedings. In other words, where evidence is introduced that relates to multiple violations, I would assess costs associated with the prosecution of both the successful and the related unsuccessful counts. See United States v. Pieper, 854 F.2d 1020, 1027-28 (7th Cir. 1988). Costs should not be *23assessed against an attorney in unrelated, unsuccessful counts where no misconduct has been found concerning a particular client. Such an assessment simply does not support the purposes underlying the factors we consider in determining the appropriate level of discipline where misconduct has occurred, but in unrelated matters.
¶ 77. I recognize that the "substantially related" approach that I would apply in this matter may not be a long-term solution as to how costs should be awarded in attorney-discipline cases. Supreme Court Rule 22.24 (1) establishes that this court has discretion to apportion costs in OLR proceedings. Until we establish standards, guidelines, and procedures for how to exercise our discretion, I propose the "substantially related" approach as a temporary measure so that we do not abdicate our responsibility to exercise our discretion in cases like this where discretion is warranted.4 Accordingly, I would follow the rationale set forth in Pieper until we devise our own procedures.
*24¶ 78. Applying the "substantially related" test is simple in this case. I conclude that imposing costs on Attorney Backes regarding the allegations of misconduct with respect to handling C.D.'s and D.M.'s matters is not warranted. Attorney Backes was acquitted of all allegations of misconduct regarding these clients, and there is no basis upon which to conclude that these allegations were in any way, much less substantially, related to the misconduct that was established.
¶ 79. In view of his lack of prior discipline, his "extensive cooperation with the OLR," his acknowledgement that he committed certain errors, and the fact that he returned fees to clients,5 imposing full costs on Attorney Backes is not justified. The factors we are to consider when imposing discipline simply do not warrant that result.
¶ 80. 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.
¶ 81. I am authorized to state that Justice PATIENCE DRAKE ROGGENSACK joins this opinion.
Per curiam op., ¶ 51.
Per curiam op., ¶ 24.
Per curiam op., ¶ 30.
We agree with the concurrence that one way to handle the lack of standards for assessing costs is by rule petitions. Bradley, J., concurrence, ¶¶ 64, 70. Nevertheless, Supreme Court Rule 22.24 (1) unequivocally vests this court with 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." In re Disciplinary Proceedings Against Polich, 2005 WI 36, ¶ 43, 279 Wis. 2d 266, 694 N.W.2d 367 (Butler, J., dissenting).
The key word is "discretion." As this court reaffirmed just last term in State v. Gallion, 2004 WI 42, ¶ 3, 270 Wis. 2d 535, 678 N.W.2d 197, discretion is not synonymous with decision-making. The exercise of discretion " 'contemplates a process of reasoning.'" Id. (quoting McCleary v. State, 49 Wis. 2d 263, 280-81, 182 N.W.2d 512 (1971)).
Per curiam op., ¶ 54.