                                                              2014 WI 34

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2013AP434-D
COMPLETE TITLE:         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 34
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     2013AP434-D


STATE OF WISCONSIN                                :              IN SUPREME COURT

Office of Lawyer Regulation,

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




       ATTORNEY       disciplinary          proceeding.      Attorney's         license

suspended.



       ¶1     PER    CURIAM.    We    review    the    report     of    the    referee,

Reserve      Judge    Robert   E.    Kinney,    recommending        that     the    court
suspend      the     license   of    Attorney     Tim     Osicka       for     60    days

concurrently with any suspension imposed in Case No. 2012AP60-D,

and that the court order Attorney Osicka to pay the full costs

of    this   disciplinary      proceeding,      which     were    $1,120.04         as   of

September 12, 2013.

       ¶2     Because no appeal has been filed from the referee's

report      and    recommendation,     we    review    the    matter     pursuant        to
                                                                No.    2013AP434-D



SCR 22.17(2).1       After considering the referee's report and the

record in this matter, we agree that Attorney Osicka committed

the acts of professional misconduct alleged in the three counts

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

We further agree with the referee that, since the misconduct

here could have been included in the complaint in the previously

filed     disciplinary     proceeding      against   Attorney     Osicka,     Case

No. 2012AP60-D, the proper level of discipline to be imposed is

a   60-day    suspension      that   is   concurrent     with   the    suspension

imposed in that case.          Finally, since Attorney Osicka initially

disputed      some    portions       of   the    OLR's     complaint    and   the

stipulation he entered was only partial in nature, we require

Attorney Osicka to pay the full costs of this proceeding.

      ¶3      Attorney Osicka was admitted to the practice of law in

this state in September 1986.                 He most recently maintained a

private      law   practice    in    Schofield.      His    license     has   been

temporarily suspended since February 2012 due to his failure to

cooperate in an OLR investigation.
      ¶4      Attorney Osicka has been the subject of professional

discipline on multiple prior occasions.              In 2002 he consented to


      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.       2013AP434-D



the imposition of a public reprimand for misconduct arising out

of    four   separate         matters.      Public     Reprimand         of    Tim    Osicka,

No. 2002-02.        His misconduct in that proceeding involved failing

to act with diligence, failing to communicate adequately with

his clients, failing to provide competent representation, making

statements     regarding         the   integrity       of   a    judge     with      reckless

disregard for the truth, and violating his attorney's oath.

       ¶5    In         2009       this       court         publicly               reprimanded

Attorney Osicka after concluding that he had failed to respond

adequately     to       his    client's     reasonable          requests       for    billing

information and an accounting of the advanced fee she had paid,

and that in another matter he had willfully failed to disclose

relevant     factual        information     to   the    OLR      in   response         to    its

requests.      In re Disciplinary Proceedings Against Osicka, 2009

WI 38, 317 Wis. 2d 135, 765 N.W.2d 775.

       ¶6    In     2010       Attorney     Osicka      again      consented          to    the

imposition        of    a     public      reprimand.            Public        Reprimand      of

Tim Osicka,       No.    2010-OLR-7.         The     misconduct       underlying            this
reprimand included failing to deposit an advanced fee into a

client trust account, failing to communicate adequately with his

client, failing to refund the unearned portion of an advanced

fee, and engaging in the practice of law while his law license

was    administratively          suspended       for    nonpayment            of    dues     and

assessments.

       ¶7    As noted above, Attorney Osicka is also the subject of

another pending disciplinary proceeding, Case No. 2012AP60.                                  In
that proceeding, which is being resolved by a separate opinion
                                             3
                                                                              No.     2013AP434-D



and order issued today, we conclude, based on Attorney Osicka's

default, that he engaged in four counts of misconduct, including

that he failed to place a client's advanced fee into a client

trust      account    or    to    provide          the     notices         required     by    the

alternative        advanced       fee        procedure,          that       he      charged     an

unreasonable fee because he did not complete the representation,

that he failed to refund unearned fees, and that he failed to

provide full and timely responses to the OLR's requests for

information.         In    re    Disciplinary            Proceedings        Against        Osicka,

2014 WI 33, ___ Wis. 2d ___, ___ N.W.2d ___.                               In that case, we

determine that a 60-day suspension of Attorney Osicka's license

to   practice      law     in    this    state      is     an    appropriate          level    of

discipline for the misconduct at issue there.                                 The misconduct

alleged in that proceeding generally occurred in the fall of

2008.

      ¶8     The     OLR   filed       the    complaint         in    this       proceeding    in

February      2013.         The     complaint            alleged          three      counts     of

misconduct.        Attorney Osicka initially filed an answer in March
2013, in which he admitted some of the factual allegations of

the complaint and denied other allegations.                               He also alleged in

his answer that the OLR had engaged in disparate treatment of

him with an intent to injure his reputation and take away his

law license.         Attorney Osicka's answer asked the court to find

no   violation,          technical       or     otherwise,            of     the      Rules     of

Professional       Conduct       for    Attorneys          and       to    assess     no     costs

against him related to this proceeding.


                                               4
                                                                             No.     2013AP434-D



    ¶9        Attorney         Osicka             subsequently         entered       into     a

stipulation        and    no   contest            plea.        In   the     stipulation,     he

withdrew his answer and pled no contest to each of the factual

allegations in the OLR's complaint.                        He further agreed that the

referee could make a determination of misconduct on the three

counts alleged in the complaint on the basis of those facts.

Attorney Osicka also verified in the stipulation that his no

contest plea was not the result of plea bargaining, that he

fully understood the misconduct allegations against him and his

right    to    contest     those        allegations,           that    he    understood     the

ramifications of his entry into the stipulation, that he also

understood his right to consult with counsel but was choosing to

proceed pro se, and that his entry into the stipulation was made

knowingly and voluntarily.

    ¶10       The stipulation did not contain an agreement regarding

the appropriate level of discipline to be imposed.                                 It provided

that the parties would submit written arguments on that issue to

the referee.
    ¶11       The referee accepted the stipulation and found, based

on the stipulation, that the facts in the OLR's complaint were

true and that they supported a conclusion of misconduct on all

three counts.

    ¶12       The facts underlying the three counts of misconduct

are as follows.            In May 2011 Attorney Osicka was retained by

R.B. to represent him in a divorce proceeding in the Lincoln

County    circuit        court.         On    June        6,   2011,      Attorney    Osicka's
license       to   practice       law        in    Wisconsin        was     administratively
                                                   5
                                                              No.    2013AP434-D



suspended due to his failure to comply with the obligation to

report the required number of continuing legal education (CLE)

credits.        On June 16, 2011, despite his license having been

suspended, Attorney Osicka filed a letter brief in the divorce

case in response to arguments that had taken place at the end of

May.2         After   subsequently   discovering   that   Attorney    Osicka's

license had been suspended, the circuit court wrote a letter to

Attorney Osicka and informed him that it could not consider the

contents of his letter brief because of his suspension.

        ¶13    In addition, Attorney Osicka failed to notify any of

his clients or the courts in which he had matters pending that

his license had been administratively suspended.             He also failed

to advise opposing counsel in R.B.'s divorce action.                He further

did not file the affidavit that SCR 22.26 requires a suspended

attorney to file with the OLR.

        ¶14    When the OLR was advised of Attorney Osicka's action

after the suspension of his license, it sent a letter to him on

July 21, 2011, requesting that he respond to the allegations of
misconduct it had received.             Attorney Osicka failed to respond

to   this      letter.      The   OLR   then   sent   a   second    letter   on

September 30, 2011, and a third letter on November 28, 2011,

        2
       In his answer and in the stipulation, Attorney Osicka
asserts that he filed the letter brief because he felt that
SCR 22.26(1)(d) allowed him to wrap up his work on the case
before transferring it to another lawyer and, in any event, his
duty to file the brief on behalf of his client, as the circuit
court had previously directed, superseded any violation of
SCR 22.26, which he considered to be a technical violation at
most.

                                         6
                                                                   No.    2013AP434-D



again asking for a response.             Attorney Osicka still failed to

provide a response.

      ¶15    In    December    2011   the    OLR   moved    this    court    for   a

temporary suspension of Attorney Osicka's license due to his

failure to cooperate with their investigation.                   The court issued

an order to Attorney Osicka directing him to show cause why his

law license should not be suspended due to his willful failure

to   cooperate.       When    Attorney   Osicka     did    not   respond    to   the

court's order, the court temporarily suspended Attorney Osicka's

license on February 23, 2012.3               Attorney Osicka's license has

remained suspended to the date of this opinion and order.

      ¶16    On the basis of these facts, the referee concluded

that Attorney Osicka had committed three counts of professional

misconduct.        First, by submitting a letter brief to a court on

behalf of a client and thereby engaging in the practice of law

while     his     license    was   suspended,      Attorney      Osicka    violated

SCR 31.10,4 which is enforced via SCR 20:8.4(f).5                        Second, by

      3
       Attorney Osicka did finally respond in September 2012 to a
report that the OLR had sent him, although he apparently did not
respond to the OLR's requests for information about its
grievance investigation, as the OLR has never asked for the
temporary suspension to be lifted.        In his September 2012
response, Attorney Osicka advised the OLR that he had closed his
law practice in June 2011.
      4
          SCR 31.10 states as follows:

           (1) If a lawyer fails to comply with the
      attendance requirement of SCR 31.02, fails to comply
      with the reporting requirement of SCR 31.03(1), or
      fails to pay the late fee under SCR 31.03(2), the
      board shall serve a notice of noncompliance on the
      lawyer. This notice shall advise the lawyer that the
                                         7
                                                  No.   2013AP434-D



failing to notify clients, opposing counsel, and relevant courts

of his suspension; by failing to submit the required affidavit

to the OLR; and by engaging in the practice of law following his

suspension, Attorney Osicka violated SCR 22.26(1) and (2),6 which

    lawyer's state bar membership shall be automatically
    suspended for failing to file evidence of compliance
    or to pay the late fee within 60 days after service of
    the notice. The board shall certify the names of all
    lawyers so suspended under this rule to the clerk of
    the supreme court, all supreme court justices, all
    court of appeals and circuit court judges, all circuit
    court commissioners appointed under SCR 75.02(1) in
    this state, all circuit court clerks, all juvenile
    court clerks, all registers in probate, the executive
    director of the state bar of Wisconsin, the Wisconsin
    State Public Defender's Office, and the clerks of the
    federal district courts in Wisconsin. A lawyer shall
    not engage in the practice of law in Wisconsin while
    his or her state bar membership is suspended under
    this rule.

         (2) If the board believes that a false report
    has been filed, the board may refer the matter to the
    office of lawyer regulation.
    5
       SCR 20:8.4(f) provides that it is professional misconduct
for a lawyer to "violate a statute, supreme court rule, supreme
court order or supreme court decision regulating the conduct of
lawyers; . . . ."
    6
        SCR 22.26(1) and (2) state:

         (1) On or before the effective date of license
    suspension or revocation, an attorney whose license is
    suspended or revoked shall do all of the following:

         (a) Notify by certified mail all clients being
    represented in pending matters of the suspension or
    revocation and of the attorney's consequent inability
    to act as an attorney following the effective date of
    the suspension or revocation.

         (b) Advise the clients to seek legal advice of
    their choice elsewhere.

                                 8
                                             No.   2013AP434-D




     (c) Promptly provide written notification to the
court or administrative agency and the attorney for
each party in a matter pending before a court or
administrative agency of the suspension or revocation
and of the attorney's consequent inability to act as
an attorney following the effective date of the
suspension or revocation.    The notice shall identify
the successor attorney of the attorney's client or, if
there is none at the time notice is given, shall state
the client's place of residence.

     (d) Within the first 15 days after the effective
date of the suspension or revocation, make all
arrangements for the temporary or permanent closing or
winding up of the attorney's practice.    The attorney
may assist in having others take over clients' work in
progress.

     (e) Within 25 days after the effective date of
suspension or revocation, file with the director an
affidavit showing all of the following:

     (i) Full compliance with the provisions of the
suspension or revocation order and with the rules and
procedures regarding the closing of the attorney's
practice.

     (ii) A list of all jurisdictions, including
state, federal and administrative bodies, before which
the attorney is admitted to practice.

     (iii) A list of clients in all pending matters
and a list of all matters pending before any court or
administrative agency, together with the case number
of each matter.

     (f) Maintain records of the various steps taken
under this rule in order that, in any subsequent
proceeding instituted by or against the attorney,
proof of compliance with the rule and with the
suspension or revocation order is available.

     (2) An attorney whose license to practice law is
suspended or revoked or who is suspended from the
practice of law may not engage in this state in the
practice of law or in any         law work activity
customarily done by law students, law clerks, or other
                          9
                                                          No.     2013AP434-D



is also enforced via SCR 20:8.4(f).             Finally, by failing to

respond to the OLR's notice of grievance or to otherwise provide

information    requested   by   the    OLR,   Attorney   Osicka    violated

SCR 22.03(2) and (6),7 which are enforced via SCR 20:8.4(h).8




     paralegal personnel, except that the attorney may
     engage in law related work in this state for a
     commercial employer itself not engaged in the practice
     of law.
     7
         SCR 22.03(2) and (6) state as follows:

          (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.
     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.
     8
       SCR 20:8.4(h) states 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.     2013AP434-D



       ¶17    The     referee       agreed     with      the     OLR     that     a     60-day

suspension would be an appropriate level of discipline to be

imposed.      He agreed that this level of discipline was supported

by     the      60-day       suspension        this       court        imposed         against

Attorney Richard            Engelbrecht,       who    had       (1)     engaged       in    the

practice of law by conducting a trial and submitting a letter

brief in a small claims eviction action while his license to

practice      law     was    administratively         suspended,          (2)    failed       to

provide notice of his suspension to the small claims court or

opposing      counsel,        and    (3)      provided         false     and     misleading

information about his conduct to the Board of Bar Examiners

(BBE)   and     the    Board    of     Attorneys      Professional         Responsibility

(BAPR).       In    re   Disciplinary         Proceedings        Against        Engelbrecht,

2000 WI 120, 239 Wis. 2d 236, 618 N.W.2d 743.

       ¶18    The referee disagreed with the OLR, however, regarding

its request that the suspension issued in this case be made

consecutive to the suspension imposed in Case No. 2012AP60-D.

The    referee      questioned       why     the   OLR    had     filed     two       separate
disciplinary complaints.               He pointed out that Attorney Osicka's

filing of the letter brief during his suspension occurred in

June 2011, and that his misconduct was noticed by the circuit

court and brought to the attention of the OLR within weeks.

Moreover,     Attorney        Osicka's     failure       to     respond    to     the      OLR's

letters took place in the fall of 2011.                               Thus, all of the

misconduct alleged in this action occurred prior to the filing

of the complaint in Case No. 2012AP60-D.                        The referee commented
that    there      really     should    not    have      been    a     concurrent       versus
                                              11
                                                                        No.    2013AP434-D



consecutive issue here.              All of the misconduct could have been

addressed in a single proceeding, which would have resulted in a

single sanction.         Further, the referee, who also presided over

the proceedings in Case No. 2012AP60-D, stated that if all of

the   counts      of    misconduct      had      been     included      in     a   single

complaint, it was doubtful that the OLR would have sought more

than a 60-day suspension.              According to the referee, the only

reason for the request for a consecutive suspension was that the

OLR allowed 13 months to pass after the filing of the first

complaint,     and     then    filed    a   second       complaint.        The     referee

concluded that a consecutive suspension would not be a fair or

proper result in these circumstances:                     "Because the respondent

should not be punished for the agency's inattention, and because

60 days is a sufficient sanction, in any event, I will decline

to recommend a consecutive suspension."

      ¶19   Finally, on the issue of costs, the referee agreed

with the OLR that this case did not present any extraordinary

circumstances, that the costs requested by the OLR had been
necessarily incurred, and that those costs were reasonable in

amount.      He      therefore       recommended        that    Attorney       Osicka   be

required to pay the full costs of this proceeding.

      ¶20   When reviewing a referee's report and recommendation,

we affirm the referee's findings of fact unless they are found

to be clearly erroneous, but we review the referee's conclusions

of law on a de novo basis.                    In re Disciplinary Proceedings

Against      Inglimo,         2007     WI        126,     ¶5,     305         Wis. 2d 71,
740 N.W.2d 125.           We     determine         the     appropriate         level    of
                                            12
                                                                            No.     2013AP434-D



discipline to impose given the particular facts of each case,

independent of the referee's recommendation, but benefiting from

it.     In re Disciplinary Proceedings Against Widule, 2003 WI 34,

¶44, 261 Wis. 2d 45, 660 N.W.2d 686.

       ¶21     In       light      of    Attorney        Osicka's    stipulation      and    no

contest plea, we accept the referee's findings of fact based

upon    the     allegations             of   the    complaint.       We    agree    with    the

referee        that      those      facts         demonstrate    that     Attorney     Osicka

committed each of the three counts of misconduct alleged in the

OLR's complaint.

       ¶22     We     comment       briefly        on    Attorney    Osicka's      contention

that his duty to protect his client's interests trumped his

obligation under SCR 22.26 not to practice law during the period

when         his         license             was         administratively          suspended.

Attorney Osicka's argument is based upon a false choice—either

he had to submit the brief in violation of SCR 22.26 or his

client would have suffered injury from an inability to present

argument to the circuit court.                           There is no evidence in the
record that Attorney Osicka notified the circuit court of his

suspension or asked for an extension of time from the circuit

court     so     that         he   could      either       resolve   his    administrative

suspension and then file the letter brief or assist his client

to find another attorney who could take over the client's case.

As the referee commented, Attorney Osicka "was not the only

attorney           in         Marathon            County     capable        of      providing

representation."               It seems highly unlikely that a circuit court
would    cause          the    client        to    forfeit    his/her      rights    in    this
                                                    13
                                                                                      No.     2013AP434-D



situation where it is the lawyer whose conduct has created the

need for a delay and/or a substitution of counsel.

       ¶23    Moreover, there was no need for this "crisis" to have

occurred.          The deadline for Attorney Osicka to have complied

with    his    CLE       reporting            requirements              was    February       1,       2011.

SCR 31.03(1).             Anyone who fails to meet this requirement is

given    a    60-day         notice      by    the       BBE       that    the     failure        to    file

evidence of CLE compliance and to pay the applicable late fee

will result in the administrative suspension of the attorney's

license.           SCR       31.10(1).             The    administrative              suspension         of

Attorney Osicka's license was therefore no surprise to him.                                              He

cannot       fail       to     take      action          to        avoid      the     administrative

suspension         of    his       license     and       then       argue      that    he    should      be

allowed       to     continue           working          on    pending         cases        during       his

suspension in order to avoid harm to the client.

       ¶24    Turning to the level of discipline and the relation of

this    proceeding           to     Case      No.    2012AP60-D,              we    agree     with      the

referee       that       the       proper      level          of    discipline         is     a    60-day
suspension and that it should be served concurrently with the

suspension imposed in Case No. 2012AP60-D.                                    Like the referee, we

see no reason why the allegations in this complaint could not

have been included in the complaint in Case No. 2012AP60-D,

either       originally            or    by     amending            the       complaint       in       that

proceeding.          We further agree that a reasonable sanction for all

of the misconduct alleged in the two complaints would be a 60-

day    suspension            and    that      it    would          be     unfair      to    impose      two


                                                    14
                                                                  No.    2013AP434-D



separate and consecutive suspensions on Attorney Osicka merely

because of the OLR's choice to file two separate complaints.

    ¶25    We also determine that it is appropriate to impose the

full costs of this proceeding on Attorney Osicka.                       Presumably,

even if the OLR had included these misconduct allegations in the

original complaint in Case No. 2012AP60-D or if it had moved to

amend the complaint in that case to add these allegations, there

would have been an increase in the costs beyond what has been

requested in that proceeding.              Given that we cannot know if

there would have been some decrease in the total amount of costs

and that the disciplinary proceedings, whether one or two, were

caused by Attorney Osicka's conduct, we conclude that it would

be appropriate for him to pay the full costs of this proceeding,

which were relatively modest in amount.

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

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

effective June 6, 2014, which is also the effective date of the

suspension being imposed in Case No. 2012AP60-D.
    ¶27    IT   IS   FURTHER   ORDERED         that   the   temporary       license

suspension of February 23, 2012, which arose out of Tim Osicka's

willful   failure    to   respond   to     or    cooperate       with    the   OLR's

grievance investigation in this matter, is lifted.

    ¶28    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.

    ¶29    IT IS FURTHER ORDERED that Tim Osicka shall comply
with the provisions of SCR 22.26 concerning the duties of a
                                      15
                                                            No.    2013AP434-D



person   whose   license   to   practice   law    in   Wisconsin   has    been

suspended.

    ¶30    IT    IS   FURTHER   ORDERED    that    compliance      with   all

conditions of this order is required for reinstatement.                    See

SCR 22.28(2).

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




                                    16
                                                       No.   2013AP434-D.ssa




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

the per curiam opinion.        My concurrence in OLR v. Osicka, 2014

WI 33, ___ Wis. 2d ___, ___ N.W.2d ___, is also applicable here:

    ¶33     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.

    ¶34     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.

    ¶35     I turn to a procedural issue relating to current OLR
practice.

    ¶36     The OLR filed two complaints against Attorney Osicka

within about a year of each other.            The same referee presided

over both proceedings against Attorney Osicka.               The referee's

report and recommendation in this, the second action, is dated

August 23, 2013 and is an open public file.

    ¶37     I note here that the referee commented critically as

follows about the OLR's filing two complaints within about a
year of each other complaining about conduct in which Attorney

                                       1
                                                       No.   2013AP434-D.ssa


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.
    ¶38   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 to institute a review of the system rather than to make

piecemeal adjustments at this time.

    ¶39   The     present   case   presents   issues   that    should    be

considered in such a review.

    ¶40   For the reasons stated, I write separately.




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      ¶41      DAVID   T.    PROSSER,    J.        (dissenting).                This    is     the

fifth time Attorney Tim Osicka has been prosecuted by the Office

of Lawyer Regulation (OLR).              This fact permits the majority to

proclaim       that    Attorney       Osicka       "has       been       the     subject       of

professional discipline on multiple prior occasions," Majority

op., ¶4, implying that Attorney Osicka is a truly bad actor.

      ¶42      There is more to the story.

      ¶43      The present complaint was filed on February 13, 2013,

almost a year and a half after OLR learned in September 2011

that Attorney Osicka had closed his law office.                            Attorney Osicka

formally       terminated      his    practice          in     June      2011     after        his

suspension       for   a    continuing   legal          education        (CLE)     violation.

OLR     nonetheless          succeeded       in         getting          Attorney           Osicka

"temporarily" suspended on different grounds eight months after

his practice had closed.             A year later it filed this complaint.

      ¶44      This    fifth    prosecution         is        based      on     events       that

occurred in the summer and fall of 2011.                           OLR knew about and

monitored these events.             But when OLR filed its fourth complaint

against Attorney Osicka on January 11, 2012, it did not include

the events from 2011 in its fourth complaint.                                   OLR has not

explained      its     reasons.       However,          filing       a    fifth     complaint

instead     of    incorporating        the       2011     events         into    the        fourth

complaint, enabled OLR to ask for another 60-day suspension,

which     it     justified     as    "progressive            discipline."              It     also

required the appointment of another referee and leads now to the

assessment       against     Attorney    Osicka          of    more       than    $1,000        in
additional costs.


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       ¶45    Attorney Osicka gave up resistance to this complaint

in July 2013 by signing a stipulation.                       The referee filed his

report in late August 2013.             OLR filed a statement of costs on

September 12, 2013, but it never moved to lift Attorney Osicka's

"temporary" suspension.            In sum, OLR sought a 60-day suspension,

even    though    Attorney     Osicka       had       been   suspended    for   a   CLE

violation since June 6, 2011, and had closed his practice.                           He

has been "temporarily" suspended for one of the grounds in this

complaint since February 23, 2012.                    He has now been suspended on

this count for more than two years.

       ¶46    This writer is not the only person to comment on the

fifth complaint.        Former Oneida County Circuit Judge Robert E.

Kinney, the referee, observed that,

            It is unclear why the matters involving the
       respondent resulted in the filing of two separate
       cases. . . .   [T]he OLR had knowledge of all the
       violations at least several months before January 11,
       2012 when the earlier complaint was filed. . . . The
       counts in the present Complaint could have been filed
       with the other counts in 2012AP60-D, and, from the
       point of view of judicial (or referee) expedition and
       cost-saving, should have been so filed.    If the OLR
       wished to delay for a few weeks the filing of the
       earlier Complaint to tie up loose ends on the more
       recent charges, fine. The point is, there should have
       been only one Complaint.   Furthermore, had the three
       counts of the present Complaint been joined with the
       earlier charges, it is doubtful that more than a 60[-
       day suspension] would have been sought on all the
       charges.
       ¶47    In this case, Attorney Osicka is charged with engaging

in    the    practice   of   law    while       his    license   was    suspended   for

failing to satisfy, or failing to report the satisfaction of,
CLE    requirements.          After     his       suspension,      Attorney     Osicka

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submitted a letter brief on behalf of a client in a divorce

case.    He first entered an appearance in that case on May 26,

2011——before the suspension——and was ordered that day to file a

brief by June 16.

       ¶48    On    June   6,    2011,      he    was     suspended     for    his   CLE

violation.          Attorney    Osicka      erred   in    continuing      to    practice

after this suspension.            I would feel more strongly about this

count    if   the     attorney    showed         indifference    to     the     client's

interest or if the evidence of consistent OLR prosecution in

similar situations were clear.

       ¶49    The    second     count    builds      on    the   first——failure       to

provide notice of his suspension to all clients and courts in

each    pending      matter,    failure      to   notify    adverse      counsel,    and

failure to submit an affidavit to the OLR director that these

steps had been taken.             Keeping in mind that Attorney Osicka

closed his law practice in the same month as his CLE suspension,

there    is   no    evidence     in   the    complaint      or   in     the    referee's

findings of how many persons other than the people involved in

Count 1 were affected by the violations in Count 2.                             Part of

Count 2, "engaging in the practice of law while his license to

practice [ ] law was suspended," is essentially the same as

Count 1.       Compare the cited SCR sections: "A lawyer shall not

engage in the practice of law in Wisconsin while his . . . state

bar membership is suspended" (SCR 31.10(1)) [Count 1], with "An

attorney . . . who is suspended from the practice of law may not

engage in this state in the practice of law" (SCR 22.26(2))
[Count 2].


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    ¶50     Count 3 is "failing to provide relevant information to

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

or otherwise provide information requested by OLR," all of which

occurred after Attorney Osicka closed his practice.

    ¶51     OLR moved to "temporarily" suspend Attorney Osicka's

license    because    of     the    conduct     in   Count   3.         Two    years    of

"temporary" suspension later, he is suspended for an additional

60 days, albeit concurrently with the additional 60 days in the

fourth complaint, based in part on this count.

    ¶52     Looking     at     this    case,     it    is    obvious          that    only

criminals are entitled to "sentence credit."

    ¶53     The court's opinion in this fifth prosecution, like

its opinion in the fourth prosecution, is one-sided.                           The court

portrays    itself     as    fair     and   reasonable       by   making        Attorney

Osicka's    60-day     suspension       here     concurrent       with    his        60-day

suspension in the fourth case.                  If the court were seriously

interested    in     being    equitable,        however,     it   would        make    the

effective date of this suspension retroactive to February 13,

2013, and eliminate the costs in this case.

    ¶54     For the reasons stated herein and more fully stated in

my dissent in the fourth case,1 OLR v. Tim Osicka, 2014 WI 33,

___ Wis. 2d ___, ___ N.W.2d ___, I respectfully dissent.




    1
       For the record, my dissent in the fourth                                case    was
circulated to the members of the court in April 2013.

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