(dissenting). Attorney Crosetto was charged with engaging in conduct intended to disrupt the court commissioner's proceedings in violation of SCR 20:3.5(c). The referee held that Attorney Crosetto's conduct was rude, demeaning, and disrespectful and "such as would disrupt a tribunal contrary to SCR 20:3.5(c)." The referee further found that Attorney Crosetto was an honest, hard-working, private practitioner whose conduct was precipitated by Commissioner Greco's uncalled for, intemperate, discourteous, and unfounded accusations "that would enrage any self-respecting attorney."1
The majority, the Board of Attorneys Professional Responsibility (BAPR) and I agree that the referee did *594not in any factual finding or conclusion of law state that Attorney Crosetto intended to disrupt the tribunal.
The majority concludes, however, that Attorney Crosetto's intent to disrupt was implicit in the referee's legal conclusion that Attorney Crosetto's conduct and statements violated SCR 20:3.5(c). BAPR asserts that the record shows, by clear and convincing evidence, that Attorney Crosetto intended either to force the commissioner to recuse himself or to dissuade the commissioner from holding an evidentiary hearing. (Board's brief at 15.) According to BAPR, Attorney Crosetto's conduct was designed to achieve those results.
I conclude that the required finding of intent to disrupt cannot be inferred from the referee's report. As I shall discuss more fully later, one can infer from the report only that the referee mistakenly disregarded intent as an element of the offense. I further conclude that the facts adduced do not show by clear and convincing evidence that Attorney Crosetto intended to disrupt the tribunal. The majority opinion's conclusions about Attorney Crosetto's intent conflict with both the referee's report and the evidence in the record. I therefore dissent from that portion of the opinion imposing discipline.
In addition to addressing whether the fact of intent was found or proved, I shall address two issues raised by Attorney Crosetto's appeal: recusal or disqualification of justices of this court and the function of court commissioners.
HH
Neither the referee nor this court can evaluate Attorney Crosetto's misconduct — and misconduct it was — in the abstract. The issue is not whether Attorney *595Crosetto's conduct was rude, demeaning, disrespectful and subject to condemnation. The issue is whether he violated SCR 20:3.5(c) of the Rules of Professional Conduct for Attorneys. More specifically, the issue is whether Attorney Crosetto engaged in conduct with the intent to disrupt a tribunal.
This disciplinary case against Attorney Crosetto stems from words spoken at the end of a court commissioner's hearing on November 10, 1988, on a motion to transfer temporary custody of a child from the father to the mother.
The referee's findings of fact and recommendations referred to only two incidents of Attorney Crosetto's behavior:
1. Attorney Crosetto "criticized [the Commissioner] for not making or keeping either minutes or notes of the testimony taken at the hearing."2
2. Attorney Crosetto was " enraged by the Commissioner's [accusatory] remarks and pointing his finger [at the Commissioner], retorted in a loud voice1' as follows: "You big mouth, name (one judge).
You can make the accusations but don't have the guts to back them up. Who the hell do you think you are. You're totally nuts."3
*596Attorney Crosetto's remarks were, according to the referee, precipitated by the commissioner's unfounded accusation in the presence of Attorney Crosetto's client and other lawyers that Attorney Crosetto was "dishonest, devious and guilty of sharp practices."4 The referee concluded that the commissioner's false accusations were "uncalled for and unnecessary and did not meet the judicial standards set forth in the Code of Judicial Ethics SCR 60.01. They were not temperate or courteous, were embarrassing and violative of the rules of fair play just as was Attorney Crosetto's conduct.1'5 The referee's conclu*597sion of law states that "[Attorney Crosetto's] conduct and statements were disrespectful and such as would disrupt a tribunal contrary to SCR 20:3.5(c)."6 The referee also stated that Attorney Crosetto's remarks "were precipitated by Commissioner Greco's uncalled for statements and accusations directed at him."
Indeed the referee's report makes no reference to Attorney Crosetto's intention. The majority opinion concludes, majority op. at 590, that a finding of Attorney Crosetto's intention is implicit in the referee's conclusion of law that Attorney Crosetto violated SCR 20:3.5(c). I disagree.
A finding of intent to disrupt, a factual finding, cannot be inferred from the referee's legal conclusion in this case. The referee mistakenly disregarded the element of intent. Nowhere in his 12-page report, including 6 pages of summary of testimony and 7 findings of fact, did the referee ever refer to Attorney Crosetto's intent. The referee's report expressed offense at and wholehearted disapproval of Attorney Crosetto's discourteous conduct, which was such as to "upset the dignity and decorum required not only by the court but by simple courtesy and etiquette." But the referee did not explic*598itly or implicitly characterize Attorney Crosetto's conduct as conduct intended to disrupt the tribunal.
The referee's extensive reliance on a New Jersey case7 that the referee characterized as "similar" to this case underlines his disregard for the required element of intent to disrupt. The two cases are not similar. The offense in the New Jersey case apparently required proof only of undignified and discourteous behavior degrading the tribunal (DR 7-106 (c)). The offense apparently did not require proof of any intent, although punishment might depend on the lawyer's intent. In the New Jersey case the attorney's conduct was found to be "undignified and discourteous and intended to degrade" the tribunal. In this case the offense requires proof of intent to disrupt, and no finding of intent was made.
Attorney Crosetto argues, as the majority opinion explains, majority op. at. 590, that the referee mistakenly applied an earlier version of the Code of Professional Responsibility, SCR 20:40(3)(f), that proscribed "a lawyer's engaging in undignified or discourteous conduct which is degrading to a tribunal." SCR 20:40(3)(f) was in effect until January 1, 1988, approximately 11 months before the incident at issue in this case.8 The referee's report and the referee's extended reliance on the New Jersey case, which is based on DR 7-106(c), support Attorney Crosetto's argument that the referee did not consider the question of intent to disrupt required under the relevant provision in the new Wisconsin Code of Professional Responsibility.9
*599BAPR asks the court to examine the record for clear and convincing evidence to support a finding of intent to disrupt. BAPR appears to argue that Attorney Crosetto intended his conduct to disrupt the proceedings in two ways: (1) Attorney Crosetto intended to avert an eviden-tiary hearing on the custody order, and (2) Attorney Crosetto intended to have the commissioner recuse himself. BAPR asserts that forcing a recusal is a disruption of the tribunal under SCR 20:3.5(c).10
The referee's report demonstrates that the referee did not accept BAPR's view of the evidence.11 In direct conflict with BAPR's and the majority opinion's reading of the record about Attorney Crosetto's intent, the referee found that Attorney Crosetto was provoked to anger and responded out of emotion. The referee expressly found that Attorney Crosetto's conduct was precipitated by the commissioner's conduct and that Attorney Crosetto was "outraged and that rage brought forth the unfortunate utterance." The referee also characterized Attorney Crosetto as "frustrated" and concluded that Attorney Crosetto had "allowed his emotions to affect his conduct as an attorney."12 On the basis of these *600findings the referee recommended Attorney Crosetto be charged with only one half the costs of the proceeding. Nothing in the referee's report supports BAPR's or the majority opinion's assertions that Attorney Crosetto intended to disrupt the tribunal.
Leaving aside the referee's findings, the record contains no evidence that Attorney Crosetto intended his conduct to force the commissioner to cancel the eviden-tiary hearing or to recuse himself. In fact, the only evidence in the record relating to Attorney Crosetto's intent refutes BAPR's and the majority's conclusions. Attorney Crosetto argued in his opening statement before the referee that "the statements he made were not made with the intent to disrupt the tribunal, they were made with the intent of defending his own integrity, his own reputation." Attorney Higgins-Frost, counsel for the mother, testified that Attorney Crosetto's reaction was one of "honest anger" and not theatrical. Attorney Kupfer testified that
I noted [Attorney Crosetto's] exact words as I was rather surprised to hear them and could not see any rationale for his comments .... [I]t was apparent to me we weren't going to have a hearing, so why were there any continued discussions about the motion, when it was clear there wasn't going to be a full hearing on the motion. I couldn't see anything was warranted, other than just getting a new date.
BAPR did not raise the subject of Attorney Crosetto's intent in its opening statement. In the midst of the hearing, despite Attorney Crosetto's assertions from the beginning of the disciplinary proceedings that he had been provoked and that his intent was to defend his integrity, BAPR's counsel stated that Attorney Crosetto "recently made the argument" that the Commissioner's unfounded accusations provoked Attorney *601Crosetto's comments. BAPR's counsel then made an offer of proof of evidence of Attorney Crosetto's intent. The referee refused to admit the evidence.
The only reasonable inferences of fact from the referee's report and the entire record are as follows: Attorney Crosetto characterizes himself as an aggressive advocate. The referee found that Attorney Crosetto responded emotionally, with outrage, having been provoked, "as any self-respecting lawyer would be," by unfounded accusations demeaning his integrity as a lawyer. Attorney Crosetto's conduct was a reflexive response made with the intent to defend the integrity of a legal document he had drafted and to clear his reputation before his client and other lawyers, as Attorney Crosetto claimed.13
The referee did not make the necessary finding of Attorney Crosetto's intent to disrupt a tribunal14 and made findings that conflict with finding an intent to disrupt. No clear and convincing evidence exists to support a finding of intent to disrupt. I would therefore dismiss this proceeding.
Attorney Crosetto moved that the seven justices recuse themselves. The motion papers assert that the risk of bias is "impermissibly high" because Attorney *602Crosetto and other plaintiffs in a federal suit against the justices relating to the integrated bar "levelled direct, personal, and substantial criticism against the justices in pleadings and in a brief filed in the federal lawsuit."15 Memorandum in Support of Motion, p. 3.
Recusal is a serious matter. Court statistics show that circuit court judges recused themselves in more than 4,000 cases in 1990. The issue of recusal of a justice has arisen at least three times in this court in the last 18 months.
The majority opinion suggests that Attorney Crosetto's motion for recusal was untimely. When and how should a litigant move for recusal of a justice? Does the court's hearing the matter on oral argument or on briefs affect the timing or procedure? Ordinarily parties do not know whether justices have recused themselves until the opinion is released.
Is the subjective standard set forth in American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 182-83, 443 N.W.2d 662 (1989) (Abrahamson, J., not participating), the correct standard? Compare State ex *603rel. National Union Fire Ins. Co. v. Cir. Court for St. Croix County, Case No. 90-0935-W, Order filed May 29, 1990 (Abrahamson, J., dissenting); and Liljeberg v. Health Services Acquisition Corp., — U.S. —, 108 S. Ct. 2194 (1988), adopting the objective standard.
Is it appropriate for the court to prohibit justices from explaining, either in a published opinion or in a document in the case file, why they recuse themselves, while justices may explain in an opinion why they are not recusing themselves?16
What action should the court take when all or a majority of justices have to recuse themselves? BAPR responded to Attorney Crosetto's recusal motion in part by pointing out that the Supreme Court must hear the matter because it is the only entity with jurisdiction to decide attorney disciplinary proceedings. The Judicial *604Council has raised similar issues concerning disciplinary action against a justice of the Supreme Court. See Judicial Council Report dated April 26, 1990. The Judicial Council reviewed the problems, asked the court to consider the adoption of a rule or procedure relating to the handling of such matters, and offered to assist the court with drafting a rule. The court has not responded to the Council's report.
This case demonstrates the need for this court to address promptly issues relating to recusal.
l-H
A striking aspect of the record in this case is the lengthy testimony about the work of court commissioners.
In many counties the judicial system could not function without the expert and able work of the court commissioners. Court commissioners handle many of the same important matters that circuit judges handle. For example, a family court commissioner may conduct hearings and enter judgments in actions for enforcement of or revision of judgments for maintenance, child support, custody and physical placement or visitation. Section 767.13(5)(b), Stats., revised by court order dated October 31, 1990.
Court commissioners are not judges. They are not elected. They are paid less than judges. They are often given even less office and hearing room space than judges. They are not subject to all the provisions of the Code of Judicial Ethics or to judicial education requirements. They are not included in the Judicial Conference. Complaints against court commissioners relating to misconduct are not investigated by the Judicial Commission.
*605In this case both Attorney Crosetto and BAPR emphasized that the proceedings before the commissioner were not reported and that the commissioner kept no notes or minutes. The failure of commissioners to record their proceedings is a recurring problem for litigants and the administration of justice, one that this court should address. See Portage Daily Register, Jan. 10, 1991; Wisconsin State Journal, Jan. 11, 1991 (newspaper series on the failure of family court commissioner to record injunction hearings in domestic abuse cases in Columbia County causes change in commissioner's practice). See also Wisconsin Equal Justice Task Force, Formal Report, Report Summary, pp. 23, 25.
Circuit court judges and supreme court justices have, on several occasions, questioned whether the proliferation of court commissioners and the increase of their powers have in effect recreated under different names the two-level court system — circuit courts and county courts — that was abolished in the 1978 court reorganization. On October 31,1990, the court issued an order increasing the powers of court commissioners. Justice Callow dissented from adoption of a part of the order "before a study is conducted on the use of court commissioners in the circuit courts." Although I voted to adopt the order, I agree with Justice Callow that a study of the use of court commissioners should be conducted.
For the reasons set forth, I would dismiss the charges.
I am authorized to state that Justice Louis J. Ceci joins in parts I and III of this dissent.
Referee's Report and Recommendation, Finding of Fact 6, p. 8.
Referee's Report and Recommendation, p. 8.
It is unclear from the referee's report whether the referee was basing his recommendation on Attorney Crosetto's criticism of the Commissioner's failure to take notes or Attorney Crosetto's "big mouth" remarks or both.
Counsel for the mother and Attorney Crosetto also had a dispute. The referee's summary of the testimony stated that counsel for the mother accused Attorney Crosetto of taking gross advantage of an unrepresented litigant and that Attorney Crosetto replied by labeling the counsel's argument stupid and *596accusing the counsel of acting unethically as both the attorney and witness. Referee's Report and Recommendation, p. 5. In his findings of fact and recommendation, the referee made no reference to Attorney Crosetto's remarks to the mother's counsel. In the recommendation section of the report, the referee characterized the conduct of counsel for the mother as "abandoning her role as attorney and springing forth as a witness" and as "frustrating" Attorney Crosetto. Referee's Report and Recommendation, p. 11.
The referee found the accusations to be unfounded. At the disciplinary hearing the commissioner denied that his comments were directed to Attorney Crosetto and acknowledged that he had no basis to accuse Attorney Crosetto of being dishonest, devious or guilty of sharp practices. The referee expressly found that the commissioner's accusations were directed to Attorney Crosetto. The guardian ad litem and the mother's counsel testified that they had never heard any disparaging remarks about Attorney Crosetto's honesty and never had any experience with Attorney Crosetto misdrafting orders.
Referee's Report and Recommendation, pp. 10-11.
SCR 60.01(3) provides: "A judge should be temperate, attentive, patient. . .."
SCR 60.01(6) provides: "A judge should be considerate and courteousf,] . . . should require similar conduct on the part of clerks, court officials and counsel . . . [and] should conduct all *597judicial proceedings so as to reflect the importance and seriousness of the inquiry to ascertain the truth."
SCR 60.01(9) provides: "A judge should conduct the work of his or her court with dignity and decorum and . . . should so act during trials and hearings that his or her attitude, manner or tone toward counsel or witnesses will not prevent the proper presentation of the cause or the ascertainment of the truth."
A judge is not disciplined for violation of SCR 60.01 unless the violation is aggravated or persistent. SCR 60.17.
Referee's Report and Recommendations, Conclusion of Law 1, p. 9.
In re Mezzacca, 67 N.J. 387, 340 A.2d 658 (1975).
Chapter 20 of the Supreme Court Rules was repealed and recreated by Supreme Court Order of June 10, 1987, effective January 1, 1988.
New Jersey apparently had adopted the ABA Model Code *599DR7-106 (c) which Wisconsin had also adopted as SCR 20:40(3)(f).
BAPR's brief states: "[Attorney Crosetto's] conduct, including the remarks directed at Commissioner Greco, clearly emanated from his desire to disturb the Commissioner's decision for a new hearing or to get him off the case, which is what he achieved." (Brief at 15.)
In his summary of testimony, his findings of fact and his recommendation, the referee made no reference at all to testimony or evidence that in any way intimates that Attorney Crosetto acted as he did with an intent to dissuade the commissioner from scheduling a hearing or to force a recusal.
Referee's Report and Recommendation, pp. 10-11.
Attorney Crosetto testified that other lawyers were present when the commissioner made accusations that were "hurtful" to him personally and to his practice. He testified his only thought was to "put a stop" to these lies.
Attorney Crosetto asserts that the Commissioner was not sitting as a tribunal at the time of Attorney Crosetto's statements. I need not reach this question. He claims the hearing was over and they were engaged in the clerical task of fixing a date for the next hearing.
Attorney Crosetto reasons that the justices have a personal interest in this disciplinary proceeding as follows: (1) allegations in the lawsuit — e.g., accusing the justices of violating Attorney Crosetto's civil rights for more than a decade, of reneging on a promise given under oath, and of possibly giving inconsistent answers under oath to interrogatories — may seriously damage the justices' reputations; (2) an elected justice's interest in reputation is greater than almost any financial interest he or she may have; (3) this proceeding gives the justices an opportunity to diffuse and diminish the allegations against them by reprimanding Attorney Crosetto and thus tarnishing Attorney Crosetto's reputation.
Some lawyers apparently believe that voicing a complaint against a judge jeopardizes the attorney or the clients. See lawyers' comments reported in the Wisconsin Equal Justice Task Force, Final Report, p. 244 (1990).
On September 6, 1990, this court adopted the following interpretation of Procedure L.l. of the Court's Internal Operating Procedures:
A justice who recuses himself or herself may file with the court or as part of a published opinion only the statement that:
A. The justice took no part.
B. The justice did not participate.
C. The justice withdrew from participation.
Compare American Bar Association Code of Judicial Conduct (1990), Canon 3 E and F which state: "E. (1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . .. F. A judge disqualified by the terms of Section 3E may disclose on the record the basis of the judge's disqualification. If following the disclosure of any basis for disqualification other than personal bias or prejudice concerning a party, the parties and lawyers, without participation by the judge, all agree that the judge should not be disqualified, and the judge is then willing to participate, the judge may participate in the proceeding. The agreement shall be incorporated in the record of the proceeding."