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In re Disciplinary Proceedings Against Konnor3/25/2005
d for reinstatement, characterizing the infractions as "molehills of unauthorized practice" being elevated to great heights and the costs as a "whopping sum."
. In OLR v. Penn, 2002 WI 5, 249 Wis. 2d 667, 638 N.W.2d 287, Attorney Penn petitioned for reinstatement to practice law in Wisconsin after a suspension following six misdemeanor drug convictions. This court agreed with the referee that reinstatement was warranted. The court imposed the reinstatement proceedings costs totaling $6803.64 on Attorney Penn, but allowed Attorney Penn one year to pay rather than the six months recommended by the referee. Two justices concurred in the reinstatement but dissented from the court's levying full costs on the lawyer. Attorney Penn objected to proceeding under the new OLR rules for reinstatement but did not object to the costs. The dissenting justices objected to the costs compared to those that would have been imposed under the prior procedure.
. In a fourth case, OLR v. Trewin, 2004 WI 116, 275 Wis. 2d 116, 684 N.W.2d 121, the referee found that Attorney Trewin violated several rules involving more than one client. The referee recommended a five-month suspension and payment of full costs. This court agreed.
. Attorney Trewin objected to costs exceeding $25,000 on the ground that many of the facts were undisputed and that much of the OLR costs related to dismissed claims that were not challenged on appeal or were unreasonably incurred in excessive and redundant discovery. The court noted that the determination of whether those undisputed aspects of his case amounted to disciplinary violations was "hotly contested."
. The Trewin dissent (on costs, but not discipline) asserted that "in retrospect" certain counts "were overpled." Retrospect is far from perfect. OLR's losing on a charge is not necessarily the equivalent of overpleading.
. The Trewin dissent asks whether the "cost assessment in some disciplinary proceedings is consistent with the lodestar methodology or whether it is driven by nothing more than OLR's legitimate need for funding and [the court's] cold-blooded political determination that additional costs not be assessed to the members of the state bar." "Both of these factors are reasonable," concludes the dissent, "but not if they completely override the element of fair play to a respondent attorney." In my opinion, neither of these factors is reasonable under any conditions. Furthermore, neither factor has been asserted as justifying the levy of costs in any proceeding.
. In a fifth case, OLR v. Marks, 2003 WI 114, 265 Wis. 2d 1, 665 N.W.2d 836, the referee recommended that Attorney Marks be suspended for 60 days based on a finding that Attorney Marks engaged in intentional misrepresentation in violation of SCR 20:8.4(c) when he wrongfully "notif two insurance companies that he maintained a lien on the proceeds for 25 percent of his former client's recovery in a personal injury wrongful death claim," contrary to the plain language of the fee agreement. The referee dismissed two claims that were filed against Attorney Marks under the Michigan Rules of Professional Conduct. The court disagreed with the dismissal but did not remand the matter in the interest of judicial economy. Attorney Marks argued that a 60-day suspension was too long. We agreed with the referee, noting that Attorney Marks had been reprimanded on three separate occasions.
. The dissent asserted that the costs were disproportionate to the seriousness of the offense and "in part reflect OLR's obsession to appeal an issue that it lost before the referee."
. In a sixth case mandated this same day, OLR v. Polich, 2005 WI 36, ____ Wis.
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