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In re Disciplinary Proceedings Against Konnor3/25/2005
fees or obtain a favorable recommendation. Nothing in the record supports any such inference.
. Finally, the dissent in the present case asserts that several policy questions should be addressed (and they are good ones) but fails to advance the discussion of these policy issues. The dissent poses as one policy question, "What factors should this court consider when a disciplined attorney moves to reduce full costs?" The dissent does not answer its own question (and has not answered this question in its prior dissents), other than recommending in the present case that the case be remanded to the referee to levy costs (without giving any guidance to the referee). Nevertheless the question deserves a response.
IV.
. Shifting costs to a losing party is a troublesome issue in the American system, and states vary considerably in their approaches to costs incurred in individual cases in the lawyer regulatory system. Some states impose no costs on the disciplined attorney; others impose a standard fee that varies with the level of discipline or stage of the proceeding. Still other states, like Wisconsin, levy all costs on the individual lawyer, absent a showing of an inability to pay. Each alternative for dealing with costs has its own set of advantages and pitfalls.
. In the hope that I might advance the discussion about costs, let me present a list of several alternatives for dealing with costs. The list is not exhaustive. Until an attempt is made to articulate and discuss alternatives, the debate about costs will continue in a relatively unproductive manner. As I see it, here are some alternatives:
. (1) The court can retain the present system, namely that the court levy all or part of the costs against the lawyer involved. These costs include such things as the cost for the referee and court reporter, as well as reasonable disbursements and attorney fees. The advantage of this alternative is it gives the court discretion to allocate fairly the costs in each case. The disadvantages are that no principles, criteria, or guidelines have been developed for levying partial costs, and that a justice may dispute the costs on a hunch, without taking any testimony or considering any evidence, that the costs are too high.
. Alaska has set forth factors for the court or the board to consider in imposing costs and fees on a lawyer when a finding of misconduct is made, including the following: the complexity of the disciplinary matter; the duration of the case; the reasonableness of the number of hours expended by counsel and the reasonableness of the costs incurred; the reasonableness of the number of counsel used; and counsel's efforts to minimize fees.
. If Wisconsin retains the present system of allowing the levy of partial costs, this court should adopt criteria for the imposition of costs and require the referee to levy costs. A referee is in a better position than the justices of this court to levy costs: The referee is often a practicing lawyer with experience in keeping time sheets, has prepared cases, and is familiar with billing norms. Even if the referee is not a practicing lawyer, the referee has witnessed first-hand the quality of services rendered and can take testimony on the reasonableness of the costs.
. (2) The court can adopt a bright-line rule that the court shall levy all costs against the lawyer. The advantage of such a rule is certainty and uniformity. But not all cases are the same. The disadvantage is that without court discretion, unfairness may result.
. (3) The court can adopt a bright-line rule that no costs be levied against the lawyer involved. The advantage of such a rule is
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