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In re Disciplinary Proceedings Against Konnor3/25/2005
counts filed. The Office of Lawyer Regulation (OLR) rejected his offer, asking a referee to recommend the more stringent sanction of a 90-day license suspension. After a hearing, the referee recommended a public reprimand, and that is the sanction approved by this court. Nevertheless, the court imposes the full cost of prosecuting the case, meaning that Attorney Konnor is required to pay the cost of OLR's unsuccessful effort to secure a higher sanction.
. The majority attempts to cushion this determination with an explanation that our court has asked the Board of Administrative Oversight to review the assessment of costs in attorney discipline cases and to present proposals for reform in the future. Until then, the court appears committed to eschewing its discretion under SCR 22.24(1) (2002) and assessing full costs to disciplined attorneys, irrespective of the merit in their arguments. This necessitates comment.
I.
. The lawyer regulation system exists "to carry out the supreme court's constitutional responsibility to supervise the practice of law and protect the public from misconduct [and incompetence] by persons practicing law in Wisconsin." SCR 21 Preamble. The Office of Lawyer Regulation has been given the lead role in investigating and prosecuting attorney discipline cases. OLR does vital work for our court and the public, and it enjoys the confidence and support of the full court.
. This cannot mean, however, that OLR is unaccountable. The Wisconsin Supreme Court should not be expected to rubberstamp every determination made by other players in the lawyer regulation system. This court has the final word on attorney discipline and discretion whether to impose "all or a portion of the costs of a disciplinary proceeding," SCR 22.24(1), or a reinstatement proceeding. SCR 22.29(5). At present, the court has been unwilling or unable to formulate a set of principles to assist in exercising this discretion.
II.
. "Under the American Rule, the parties to a lawsuit bear the cost of their own attorney fees absent legislative authorization to shift costs." Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112, , 275 Wis. 2d 1, 683 N.W.2d 58 (citing Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983); Kremers-Urban Co. v. Am. Employers Ins. Co., 119 Wis. 2d 722, 744, 351 N.W.2d 156 (1984)). The Wisconsin legislature has authorized courts to shift costs and award attorney fees to successful litigants in a number of specific situations.
. In addition, the legislature has authorized parties to a lawsuit to make settlement offers as a means to promote settlements and control costs. Wis. Stat. § 807.01 (2003-04). For instance, a defendant may serve upon a plaintiff an offer of judgment to be taken against the defendant, and "If the offer of judgment is not accepted and the plaintiff fails to recover a more favorable judgment, the plaintiff shall not recover costs but defendant shall recover costs to be computed on the demand of the complaint." Wis. Stat. § 807.01(1).
. The lawyer regulation system does not follow the American Rule. In attorney discipline cases, this court is imposing full costs on a respondent attorney even when the attorney has been partially or substantially successful or OLR has failed to recover "a more favorable" determination than the attorney offered. With very rare exceptions, the only time an attorney escapes the imposition of full OLR costs is when the attorney secures dismissal of all OLR counts. Even in these cases the attorney must shoulder his or her own expenses. The effect of this prac
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