Office of Lawyer Regulation v. Tim Osicka

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.
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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
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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.
2
No. 2013AP434-D.dtp
¶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.
1
No. 2013AP434-D.dtp
¶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
2
No. 2013AP434-D.dtp
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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No. 2013AP434-D.dtp
¶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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No. 2013AP434-D.dtp
1