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In re Disciplinary Proceedings Against Konnor3/25/2005
2d ____, ____ N.W.2d ____, one dissent proposes levying costs on the basis of counts proved. We rejected this methodology in several cases, most recently in In re Pangman, 216 Wis. 2d 440, 574 N.W.2d 232 (1998), without explanation. The other dissent does not fully subscribe to this methodology but joins in seeking a remand to the referee for an apportionment of costs.
. The fairness of this approach is open to question. For example, Attorney Polich failed to comply with CLE requirements. His office received notification of his problem and suspension of his license by certified mail. OLR was justified in prosecuting Polich for practicing without a license, even though these counts were dismissed. Attorney Polich's defense was that his staff failed to notify him that he was suspended. As the referee stated, the attorney's explanation is susceptible to skepticism. The referee judged the credibility of the witnesses, and this court must abide by the referee's determination of credibility, even though we too are skeptical of Attorney Polich's explanation for the counts that were dismissed.
. Nothing in the record indicates that the counts on which Attorney Polich prevailed were without prosecutorial merit or that the OLR costs were unreasonable or unnecessary. Attorney Polich's conduct caused this prosecution to proceed on all the counts. Why should the costs Attorney Polich caused OLR to incur be shifted to all the other attorneys of the state who are innocent of any wrongdoing? Between the members of the state bar and Attorney Polich, why should the members pay for any part of the prosecution Polich (who was disciplined) caused?
. In the present case, the seventh case, the dissent charges the Office of Lawyer Regulation with over-litigating four cases. The only evidence given for the charge of over-litigating is that OLR did not prevail on all counts. No hearing was held by the referee or this court on the issue of the reasonableness of the costs incurred in any of the cases; neither the OLR nor the lawyer involved had an opportunity to explain the costs or rebut the charge of over-litigating in any of the cases. I do not think that the court or any justice should make unsubstantiated charges that either OLR staff or retained counsel over-litigated a case.
. No one has accused the lawyers representing OLR in any of these cases of padding their hours, that is, misstating the number of hours worked. Everyone agrees they spent the hours reported. Rather, a dissenting justice has sometimes opined that the OLR lawyer should have spent less time on the case.
. OLR staff lawyers get paid regardless of the hours they spend on particular cases. They have more than enough work to keep busy working efficiently on the cases they have. They need not spend excess time on a case.
. Retained counsel take OLR cases as a public service and are paid $60 an hour, a rate far below the market rate for legal work. A lawyer retained in an OLR case is lucky to cover his or her office overhead, much less turn a profit. There is simply no incentive for retained counsel to over-litigate under these circumstances, that is, to spend too many hours on an OLR case! Time spent at $60 per hour cannot be spent on cases that pay more. As one lawyer retained by OLR joked at a recent seminar, "I get paid $60.00 per hour for OLR work. I don't ask an extra question."
. In the present case, the dissent charges that OLR utilized different procedures in two cases that straddled the change from BAPR to OLR so as to increase the costs in the case using the new OLR procedure. Implicit is an allegation that OLR improperly manipulated the procedure to increase attorney
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