                                                              2014 WI 33

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2012AP60-D
COMPLETE TITLE:         In the Matter of Disciplinary Proceedings
                        Against Tim Osicka, Attorney at Law:

                        Office of Lawyer Regulation,
                                  Complainant,
                             v.
                        Tim Osicka,
                                  Respondent.



                            DISCIPLINARY PROCEEDINGS AGAINST OSICKA

OPINION FILED:          June 6, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:           ABRAHAMSON, C.J., concurs. (Opinion filed.)
   DISSENTED:           PROSSER, J., dissents. (Opinion filed.)
   NOT PARTICIPATING:   BRADLEY, J., did not participate.

ATTORNEYS:
                                                                             2014 WI 33
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.        2012AP60-D


STATE OF WISCONSIN                                :            IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Tim Osicka, Attorney at Law:

Office of Lawyer Regulation,                                             FILED
               Complainant,
                                                                     JUN 6, 2014
       v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Tim Osicka,

               Respondent.




       ATTORNEY       disciplinary       proceeding.         Attorney's         license

suspended.



       ¶1      PER    CURIAM.     We    review    Reserve       Judge      Robert       E.

Kinney's         recommendation          that         this         court        suspend

Attorney Tim Osicka's license to practice law in Wisconsin for a

period of 60 days for professional misconduct.                     The referee also

recommended that Attorney Osicka be required to pay restitution

to    an    injured     client,   and   that     he   pay    the     costs     of    this

proceeding.
                                                                                  No.    2012AP60-D



     ¶2     Because        no      appeal    has      been       filed,       we    review         the

referee's report pursuant to SCR 22.17(2).1                           After conducting our

independent       review      of    the     matter,        we    accept       and       adopt      the

referee's findings of fact, which were based on the allegations

of the complaint filed by the Office of Lawyer Regulation (OLR),

due to Attorney Osicka's default.                          We agree that the OLR is

entitled     to     a   default           judgment,         and       we     determine             that

Attorney Osicka's misconduct warrants a suspension of 60 days.

We impose the full costs of this proceeding on Attorney Osicka.

The costs totaled $1,579.97 as of July 30, 2012.

     ¶3     Attorney        Osicka        was       admitted       to       practice         law     in

Wisconsin    in    1986.           His    Wisconsin        law    license          is   currently

suspended    for     noncompliance           with         continuing         legal      education

(CLE) requirements, for nonpayment of bar dues, for failing to

comply with the trust account certification requirement, and for

failing to cooperate with the OLR's investigation.

     ¶4     Attorney        Osicka        has       been        the     subject         of     prior

professional       discipline.               In       2002        this       court       publicly
reprimanded       Attorney          Osicka          for     failing          to      communicate

adequately    with      his     client,         failing      to       act    with       reasonable


     1
         SCR 22.17(2) states:

          If no appeal is filed timely, the supreme court
     shall review the referee's report; adopt, reject or
     modify the referee's findings and conclusions or
     remand the matter to the referee for additional
     findings;   and   determine  and   impose  appropriate
     discipline.   The court, on its own motion, may order
     the parties to file briefs in the matter.

                                                2
                                                                                   No.     2012AP60-D



diligence, failing to provide competent representation, making

statements        regarding         the    integrity         of     a    judge     with    reckless

disregard for truth or falsity, and violating the attorney's

oath    by     disrespecting              the     court.                Public     Reprimand          of

Tim Osicka,          No.      2002-02.             In       2009        this     court     publicly

reprimanded Attorney Osicka for willfully failing to disclose

information         to    the      OLR    during       a    grievance          investigation      and

failing      to      comply        promptly       with         a    client's       requests       for

information.             In   re    Disciplinary            Proceedings          Against    Osicka,

2009 WI 38, 317 Wis. 2d 135, 765 N.W.2d 775.                                In 2010 this court

publicly reprimanded Attorney Osicka for failing to deposit a

client's advance fee into a client trust account, failing to

communicate adequately with his client, failing to either refund

the unearned portion of an advance fee or provide an accounting

to the client upon termination of representation, and engaging

in the unauthorized practice of law by practicing law when his

law license was suspended for nonpayment of State Bar dues.

Public Reprimand of Tim Osicka, No. 2010-OLR-7.
       ¶5      On    January        11,     2012,          the     OLR     filed    the     current

complaint against Attorney Osicka.                             It alleges four counts of

professional             misconduct,        all         involving          Attorney        Osicka's

representation of A.L.'s minor daughter.

       ¶6      The    complaint          alleges        that       in   September        2008,   A.L.

retained Attorney Osicka to represent her minor daughter on a

delinquency         petition        filed    in    Marathon             County    circuit    court.

The    minor      had      been     arrested       for      marijuana          possession        as   a


                                                   3
                                                                    No.    2012AP60-D



juvenile, and A.L. sought to minimize her daughter's potential

punishment.

       ¶7      Attorney Osicka charged A.L. a $750 advance fee, which

A.L.       paid.   Attorney   Osicka     and     A.L.     entered    into    a   fee

agreement which provided, "Client agrees to pay a flat fee of

$750 for this service.            That fee, upon payment, becomes the

property of the law firm.           It will be deposited in Attorney's

business      account,   rather   than   the     firm's    trust    account,     and

Client hereby specifically agrees that Attorney may do so."

       ¶8      Attorney Osicka did not place any of the advanced fees

in trust, nor did he provide any of the notices required under

SCR 20:1.15(b)(4m)2 for the alternative treatment of advanced

fees.


       2
       SCR 20:1.15(b)(4m) states               as    follows:         Alternative
protection for advanced fees.

            A lawyer who accepts advanced payments of fees
       may deposit the funds in the lawyer's business
       account, provided that review of the lawyer's fee by a
       court of competent jurisdiction is available in the
       proceeding to which the fee relates, or provided that
       the lawyer complies with each of the following
       requirements:

            a. Upon accepting any advanced payment of fees
       pursuant to this subsection, the lawyer shall deliver
       to the client a notice in writing containing all of
       the following information:

               1. the amount of the advanced payment;

               2. the basis or rate of the lawyer's fee;

            3. any expenses       for    which      the   client    will    be
       responsible;

                                         4
                                             No.   2012AP60-D




     4. that the lawyer has an obligation to refund
any unearned advanced fee, along with an accounting,
at the termination of the representation;

     5. that the lawyer is required to submit any
unresolved   dispute   about  the   fee   to   binding
arbitration within 30 days of receiving written notice
of such a dispute; and

     6. the ability of the client to file a claim with
the Wisconsin lawyers' fund for client protection if
the lawyer fails to provide a refund of unearned
advanced fees.

     b. Upon termination of the representation, the
lawyer shall deliver to the client in writing all of
the following:

      1. a final accounting, or an accounting from the
date of the lawyer's most recent statement to the end
of the representation, regarding the client's advanced
fee payment with a refund of any unearned advanced
fees;

     2. notice that, if the client disputes the amount
of the fee and wants that dispute to be submitted to
binding arbitration, the client must provide written
notice of the dispute to the lawyer within 30 days of
the mailing of the accounting; and

     3. notice that, if the lawyer is unable to
resolve the dispute to the satisfaction of the client
within 30 days after receiving notice of the dispute
from the client, the lawyer shall submit the dispute
to binding arbitration.

     c. Upon timely receipt of written notice of a
dispute from the client, the lawyer shall attempt to
resolve that dispute with the client, and if the
dispute is not resolved, the lawyer shall submit the
dispute to binding arbitration with the State Bar Fee
Arbitration Program or a similar local bar association
program within 30 days of the lawyer's receipt of the
written notice of dispute from the client.

     d. Upon receipt of an arbitration award requiring
the lawyer to make a payment to the client, the lawyer
                          5
                                                                     No.    2012AP60-D



       ¶9     Attorney   Osicka     negotiated       with    Marathon        County's

district attorney and social services department on the minor's

behalf, and the parties agreed to a consent decree.                       The parties

scheduled a court hearing for November 21, 2008, to consider the

consent decree.

       ¶10    On or about November 17, 2008, Attorney Osicka met

with A.L., and A.L. signed the decree.

       ¶11    On November 19, 2008, Attorney Osicka informed A.L.

that he would be appearing in an out-of-town court on the day of

the hearing, that he would be calling the court in Marathon

County at the appointed time to discuss the decree, and that

A.L.        and   her    daughter         should     attend         the      hearing.

Attorney Osicka explained the hearing's purpose to A.L. and the

minor.

       ¶12    Attorney   Osicka     did       not   appear    at     the     hearing,

however, because he learned that the State Bar of Wisconsin had

administratively suspended his law license for his failure to

pay mandatory dues and assessments.                  Attorney Osicka informed
the district attorney that he would not attend the hearing to

consider the consent decree.           A.L. and her daughter appeared at

the    hearing,     only    to    be       advised     by     the     court      that

Attorney Osicka's license had been suspended, that A.L. needed

to find another attorney on behalf of her daughter, and that the

matter would need to be rescheduled.

       shall pay the arbitration award within 30 days, unless
       the client fails to agree to be bound by the award of
       the arbitrator.

                                          6
                                                                                 No.     2012AP60-D



      ¶13    Attorney Osicka paid his State Bar dues by credit card

and   forwarded       a    required        trust       account       certification         to   the

State    Bar.       The     State      Bar    reinstated         Attorney         Osicka's      law

license on November 24, 2008.

      ¶14    In     the     meantime,         the       circuit       court         appointed     a

different         lawyer       as    the     minor's          attorney.           This     lawyer

successfully negotiated a consent decree with the State and the

county's     social        services        department,          and    the       circuit    court

approved the decree on December 23, 2008.

      ¶15    Attorney Osicka did not refund any advanced fees to

A.L. for his representation of the minor.

      ¶16    A.L. filed a grievance against Attorney Osicka.                                    The

OLR      forwarded         a        notice        of        formal         investigation        to

Attorney Osicka, requiring Attorney Osicka to respond fully and

fairly to the grievance.

      ¶17    Attorney Osicka submitted a partial response to the

notice       of      formal          investigation.                   In      his      response,

Attorney Osicka           noted     that     he       had    successfully         negotiated      a
consent decree for the minor, that he had been initially unaware

of his suspension, and that he was unable to appear in court on

the     minor's      behalf.           Attorney             Osicka    did     not      reply     to

allegations that his conduct may have violated certain rules of

professional        conduct.          In     addition,         Attorney      Osicka      did    not

provide the OLR with a copy of his file, as had been requested

of    him.         The     OLR       sent     Attorney          Osicka       a      supplemental

investigative letter, to which Attorney Osicka did not respond.


                                                  7
                                                         No.   2012AP60-D



     ¶18    On January 11, 2012, the OLR filed the complaint in

the present case.       The OLR's complaint alleged four separate

counts of misconduct.       Count One alleged that by failing to

deposit the $750 into his trust account and instead depositing

the money into his law firm operating account, with no evidence

he intended to utilize the alternative fee placement procedures

permitted    by   SCR   20:1.15(b)(4m),   Attorney    Osicka   violated

SCR 20:1.15(b)(4).3     Count Two alleged that by accepting a $750

fee for a representation he did not complete, Attorney Osicka

charged an unreasonable fee, in violation of SCR 20:1.5(a).4

     3
       SCR 20:1.15(b)(4) states as follows:          Unearned fees and
cost advances.

          Except as provided in par. (4m), unearned fees
     and advanced payments of fees shall be held in trust
     until earned by the lawyer, and withdrawn pursuant to
     sub. (g). Funds advanced by a client or 3rd party for
     payment of costs shall be held in trust until the
     costs are incurred.
     4
         SCR 20:1.5(a) provides:

          A lawyer shall not make an agreement for, charge,
     or collect an unreasonable fee or an unreasonable
     amount for expenses. The factors to be considered in
     determining the reasonableness of a fee include the
     following:

          (1) the time and labor required, the novelty and
     difficulty of the questions involved, and the skill
     requisite to perform the legal service properly;

          (2) the likelihood, if apparent to the client,
     that the acceptance of the particular employment will
     preclude other employment by the lawyer;

          (3) the fee customarily charged in the locality
     for similar legal services;

                                   8
                                                          No.   2012AP60-D



Count Three alleged that by failing to refund unearned fees to

A.L.,   Attorney   Osicka   violated   SCR 20:1.16(d).5     Count     Four

alleged that by failing to provide relevant information to the

OLR in a timely fashion and by failing to answer questions fully

in response to the OLR's investigation, Attorney Osicka violated

SCR 22.03(2) and (6)6 enforceable through SCR 20:8.4(h).7              The


           (4) the amount involved and the results obtained;

         (5) the time limitations imposed by the client or
    by the circumstances;

         (6) the nature and length         of   the   professional
    relationship with the client;

         (7) the experience, reputation, and ability             of
    the lawyer or lawyers performing the services; and

           (8) whether the fee is fixed or contingent.
    5
        SCR 20:1.16(d) states:

         Upon termination of representation, a lawyer
    shall take steps to the extent reasonably practicable
    to protect a client's interests, such as giving
    reasonable notice to the client, allowing time for
    employment of other counsel, surrendering papers and
    property to which the client is entitled and refunding
    any advance payment of fee or expense that has not
    been earned or incurred. The lawyer may retain papers
    relating to the client to the extent permitted by
    other law.
    6
        SCR 22.03(2) and (6) state:

         (2) Upon    commencing  an   investigation,   the
    director shall notify the respondent of the matter
    being investigated unless in the opinion of the
    director the investigation of the matter requires
    otherwise.    The respondent shall fully and fairly
    disclose all facts and circumstances pertaining to the
    alleged misconduct within 20 days after being served
    by ordinary mail a request for a written response.
                                   9
                                                                No.    2012AP60-D



OLR     sought   a    60-day   suspension      and     an    order    requiring

Attorney Osicka to pay restitution to A.L. in the amount of

$750.

      ¶19   The OLR made multiple unsuccessful attempts to serve

the complaint and order to answer on Attorney Osicka, both via

personal service and via certified mail.              Having made reasonably

diligent attempts to serve Attorney Osicka, the OLR moved for a

finding of default.       Notice of the hearing on the OLR's default

motion was sent to the last known address Attorney Osicka had

provided to the State Bar of Wisconsin, but Attorney Osicka did

not   respond    or   appear   at   the    hearing.     On   June     18,   2012,

Referee Kinney granted the OLR's default motion.

      ¶20   The referee subsequently filed a report finding the

facts as alleged in the OLR's complaint and concluding that

      The director may allow additional time to respond.
      Following receipt of the response, the director may
      conduct further investigation and may compel the
      respondent to answer questions, furnish documents, and
      present any information deemed relevant to the
      investigation.

            . . . .

           (6) In the course of the investigation, the
      respondent's   wilful  failure   to  provide  relevant
      information, to answer questions fully, or to furnish
      documents and the respondent's misrepresentation in a
      disclosure are misconduct, regardless of the merits of
      the matters asserted in the grievance.
      7
       SCR 20:8.4(h) says it is professional misconduct for a
lawyer to "fail to cooperate in the investigation of a grievance
filed with the office of lawyer regulation as required by
SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or
SCR 22.04(1); . . . ."

                                      10
                                                                              No.    2012AP60-D



Attorney       Osicka      had      committed        each    of     the    four     counts    of

misconduct.        Based on the conclusions of misconduct, the referee

recommended that Attorney Osicka's license to practice law in

this     state     be     suspended       for     60       days.        The   referee      also

recommended that Attorney Osicka be ordered to pay restitution

to A.L. in the amount of $750.

       ¶21     Attorney        Osicka    did     not       appeal    from     the    referee's

report and recommendation.                Thus, we proceed with our review of

the matter pursuant to SCR 22.17(2).                              We review a referee's

findings of fact subject to the clearly erroneous standard.                                  See

In re Disciplinary Proceedings Against Eisenberg, 2004 WI 14,

¶5, 269 Wis. 2d 43, 675 N.W.2d 747.                          We review the referee's

conclusions of law de novo.                  Id.       We determine the appropriate

level of discipline independent of the referee's recommendation.

See In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶22     In light of Attorney Osicka's failure to appear or

participate in this case, we accept the referee's recommendation
and    agree      that    Attorney      Osicka       has    defaulted.         In    light    of

Attorney Osicka's default, we accept the allegations set forth

in the complaint as true and conclude that the OLR has met its

burden       of    proof       with     respect       to    the     allegations       in     the

complaint.

       ¶23     The referee's findings of fact have not been shown to

be clearly erroneous, and we adopt them.                           We also agree with the

referee's conclusions of law, and we agree with the referee's
recommendation           for    a   60-day      suspension         of     Attorney    Osicka's
                                                11
                                                                 No.    2012AP60-D



license to practice law.        Finally, we agree with the referee's

recommendation that Attorney Osicka be required to pay the costs

of this proceeding.

    ¶24     IT   IS   ORDERED   that    the   license      of   Tim    Osicka   to

practice law in Wisconsin is suspended for a period of 60 days

effective the date of this order.

    ¶25     IT IS FURTHER ORDERED that Tim Osicka shall comply

with the provisions of SCR 22.26 concerning the duties of a

person   whose   license   to   practice      law    in    Wisconsin    has   been

suspended.

    ¶26     IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tim Osicka shall pay restitution to his former

client, A.L., in the amount of $750.

    ¶27     IT IS FURTHER ORDERED that within 60 days of the date

of this order, Tim Osicka shall pay to the Office of Lawyer

Regulation the costs of this proceeding.

    ¶28      IT IS FURTHER ORDERED that the restitution is to be

completed     prior   to   paying   costs     to     the    Office     of   Lawyer
Regulation.

    ¶29     IT   IS   FURTHER    ORDERED      that    compliance       with     all

conditions of this order is required for reinstatement.                         See

SCR 22.28(2).

    ¶30     ANN WALSH BRADLEY, J., did not participate.




                                       12
                                                                  No.    2012AP60-D.ssa




    ¶31       SHIRLEY S. ABRAHAMSON, C.J.                (concurring).         I join

the per curiam opinion.

    ¶32       Although Attorney Osicka's repeated violations of the

Rules of Professional Conduct for Attorneys in the present case

are not the most horrific the court has encountered, Attorney

Osicka did harm his clients. (And this is not the first time.

Attorney      Osicka   is    a    repeat    offender.)          His     clients    have

registered complaints and they want to be assured that this

court's lawyer discipline system cares about them as victims of

an attorney's misconduct and that the court will provide the

victims with relief.

    ¶33       Victims do not expect the court to ignore them and to

treat them as not important enough to redress their grievances.

Victims of attorney misconduct deserve OLR's and the court's

attention.

    ¶34       I turn to a procedural issue relating to current OLR

practice.
    ¶35       The   OLR     filed    another       complaint    against      Attorney

Osicka   on    February     25,     2013,   about    a   year   after     filing   the

complaint in the present case.                  See OLR v. Osicka, 2014 WI 34,

___ Wis. 2d ___, ___ N.W.2d ___.                  The OLR filed the complaint

that is the subject of the present proceedings against Attorney

Osicka on January 11, 2012.            The same referee presided over both

proceedings against Attorney Osicka.                  The referee's report and

recommendation in the second action is dated August 23, 2013 and
is an open public file.

                                            1
                                                     No.    2012AP60-D.ssa


    ¶36   I note here that the referee commented critically as

follows about the OLR filing two complaints within about a year

of each other complaining about conduct in which Attorney Osicka

engaged during approximately the same time period.          The referee

stated:

    It is unclear why the matters involving [Attorney
    Osicka] resulted in the filing of two separate
    cases. . . . [E]verything else charged in the present
    Complaint . . . pre-dated the filing, on January 11,
    2012, of the earlier complaint in 2012AP60-D, and the
    OLR had knowledge of all the violations at least
    several months before January 11, 2012 when the
    earlier Complaint was filed. . . . The point is, there
    should have been only one Complaint.
    ¶37   As I have written in OLR v. Johns, 2014 WI 32, ___

Wis. 2d ___, ___ N.W.2d ___, of even date, the OLR disciplinary

system is about 15 years old.         Several anomalies and proposed

amendments have been brought to the court's attention.             It is

time for the court to institute a review of the system rather

than to make piecemeal adjustments at this time.

    ¶38   The   present   case   presents   issues   that    should    be

considered in such a review.

    ¶39   For the reasons stated, I write separately.




                                  2
                                                              No.    2012AP60-D.dtp




       ¶40   DAVID    T.    PROSSER,    J.   (dissenting).          Attorney   Tim

Osicka (Osicka) is not an angel.                 He has been disciplined on

several occasions.           Nonetheless, after looking at his recent

prosecutions,        one    has    to   wonder    whether   Osicka's      conduct

warrants the zealous attention it has consistently received from

the Office of Lawyer Regulation (OLR), or whether Osicka has

simply become an easy target because he can no longer afford to

defend himself.        Osicka understands from experience that, unless

he prevails on every allegation of misconduct against him, he

will be required to pay all or substantially all costs of the

OLR prosecution.

       ¶41   This policy has troubled me for years.                  The supreme

court must be vigilant in protecting the public from attorneys

who do not comply with the ethical obligations of the legal

profession.        But not all violations of the code of professional

responsibility are equal in importance.                 Some violations are

mala   in    se,   others    are    merely   mala   prohibitum.        Given   its
limited resources, OLR should give priority to the former and

balance to the latter.            In my view, it has not met that test in

this case.

       ¶42   I write separately to discuss some background facts

that put this mala prohibitum prosecution in perspective.

                                         I

       ¶43   Osicka was the subject of a public reprimand in 2002.

Public Reprimand of Tim Osicka, No. 2002-02.                My concern here is



                                         1
                                                                    No.       2012AP60-D.dtp

not with that prosecution but rather with four later efforts to

prosecute him, of which this is the third.

                                             A

      ¶44   "In     2009   this    court         publicly    reprimanded          Attorney

Osicka for willfully failing to disclose information to the OLR

during a grievance investigation and failing to comply promptly

with a client's requests for information."                        Per Curiam op., ¶4

(citing In re Disciplinary Proceedings Against Osicka, 2009 WI

38, 317 Wis. 2d 135, 765 N.W.2d 775).                    This is true.            What the

Per Curiam does not explain is that the OLR filed four counts

against Osicka and sought to suspend his license for 60 days.

Although OLR failed to prove two of its four counts, the referee

still recommended a 60-day suspension.                      Osicka was thus forced

to appeal to this court.               This court reduced the sanction to a

public reprimand but socked Osicka with $10,116.17 in OLR costs.

Osicka also had to pay for his own attorney.                        In short, Osicka

had to pay the full costs of his defense and almost all costs of

the   OLR   prosecution,        even    though      he   substantially         prevailed.

This was a crippling burden for a sole practitioner.
      ¶45   The critical events in the present case occurred in

November     2008      during     the       OLR's    prosecution         of     the    2009

disciplinary matter.

                                             B

      ¶46   "In     2010   this    court         publicly    reprimanded          Attorney

Osicka for failing to deposit a client's advance fee into a

client trust account, failing to communicate adequately with his

client, failing to either refund the unearned portion of an
advance     fee   or    provide        an    accounting      to    the    client       upon

                                             2
                                                                      No.    2012AP60-D.dtp

termination of representation, and engaging in the unauthorized

practice    of   law    by    practicing        law    when    his   law     license    was

suspended for nonpayment of State Bar dues."                       Per Curiam op., ¶4

(citing Public Reprimand of Tim Osicka, No. 2010-OLR-7).                            Osicka

claims that he provided little or no defense to these charges

because of the high cost of defending himself.

      ¶47     With     respect   to    this      second       of     the     four   recent

disciplinary matters, it should be noted that violations of the

old   trust    account       rule,   with   respect       to    advance       fees,    were

commonplace among criminal defense attorneys and others whose

work on cases quickly exhausted the advance fees.                           In fact, this

court created an alternative to the standard trust account rule

in response to the old rule's inflexibility.                          Although Osicka

was found to have violated the old trust account rule, he was

not required to refund any money to his client, implying that he

had earned the whole advance fee.

      ¶48     The count involving the unauthorized practice of law——

from October 31, 2008, through November 21, 2008——covers the

critical period in the present case.                    Osicka claimed then that
he sent a check to the State Bar office on November 3, 2008, for

his dues payment.             In the 2010 discipline case, the referee

wrote: "There [is] no indication that the State Bar received

Osicka's      letter    and    the    check      was    not     negotiated."           This

language does not constitute a finding that Osicka never sent

such a check, nor does it rule out the possibility that Osicka's

check bounced because of insufficient funds.

                                            C



                                            3
                                                             No.   2012AP60-D.dtp

    ¶49       In the present case, Osicka is found to have violated

a revised version of the trust account rule, and he is subjected

to "progressive" discipline.            However, Osicka's new violation

preceded the 2010 discipline as well as the 2009 discipline, and

he is putting up no defense.            He is once again defaulting, at

least in part, to avoid costs.

    ¶50       The present prosecution also involves violations of

SCR 20:1.5(a) and SCR 20:1.16(d).

    ¶51       Rule 20:1.5(a) provides in part: "A lawyer shall not

make an agreement for, charge, or collect an unreasonable fee or

an unreasonable amount for expenses."             SCR 20:1.5(a).         The Per

Curiam sums up this count, saying that "by accepting a $750

[advance] fee for a representation he did not complete, Attorney

Osicka charged an unreasonable fee."            Per Curiam op., ¶18.          Here

is the rest of the story.               Osicka was retained by A.L. in

September 2008 before he was told that he had been suspended for

failing     to     pay   his    bar    dues.      Thereafter,       he    worked

conscientiously to represent A.L.'s daughter and negotiated a

consent decree with the district attorney for the benefit of the
daughter.      Paragraphs 6-12 of the Per Curiam show that Osicka's

problems stemmed from his failure to timely pay his bar dues,

not because       he overcharged his client or did not diligently

represent his client.          Osicka paid his bar dues on November 21,

2009, by credit card.          If, on November 21, the circuit court had

accepted the consent decree as it had been negotiated, or if the

court   had      rescheduled    the   hearing   without    appointing     a   new

lawyer, there would have been no problem.                 It was the circuit



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court's      discretionary           action       that      prevented         Osicka     from

completing the representation.

       ¶52   On the third count, the referee concluded that Osicka

violated a rule by failing to refund unearned fees, and Osicka

was ordered to refund A.L.'s $750.                     This means that the referee

determined that Osicka earned nothing for all his work and that

because of the circuit court's decision to oust Osicka from the

case, Osicka was required to refund his entire advance fee.

This may be fair to A.L., who was forced to pay twice for the

same   service,    but     it    was    not       fair    to   Osicka     who    is    denied

payment for service he performed.

       ¶53   The lesson to be learned from these counts is twofold:

(1) always pay your bar dues on time, and (2) always defend

yourself     if   you    have    a     defense.          For    Osicka,       however,   the

legitimacy of this response is affected by the costly result of

his 2009 discipline.            Now he is ordered to pay another $1,579.97

in costs in this case.

                                              D

       ¶54   A fourth prosecution is pending.                         It was filed on
February 25, 2013.         This third prosecution was filed January 11,

2012, concerning events that occurred largely before the 2009

discipline.       As the Per Curiam notes, Osicka's law license "is

currently     suspended     for        noncompliance           with   continuing       legal

education (CLE) requirements, for nonpayment of bar dues, for

failing      to   comply        with     the       trust       account        certification

requirement,      and     for    failing          to     cooperate    with      the    OLR's

investigation."         Per Curiam op., ¶3.



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    ¶55    The plain truth is that OLR knew Osicka had closed his

law office and moved out of it no later than September 2011.                       In

December   2011   OLR    filed   a   sworn     affidavit     from      one   of   its

investigators alleging, on information and belief, that "Osicka

has ceased practicing law."             Thus, OLR knew Osicka had ceased

practicing law before filing this case and before filing the

fourth prosecution.

                                        II

    ¶56    Why    is    OLR   continuing      to   file   charges      against    an

attorney who has ceased practicing law?                   Why is it piling up

legal costs that it expects Osicka to pay?

    ¶57    These prosecutions raise questions about how OLR uses

its limited resources to protect the public interest——questions

about its priorities.

    ¶58    Because      the   answers    to   questions     of    this    sort    are

seldom addressed, I feel compelled to respectfully dissent.




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