Disciplinary Proceedings Against Osicka
2014 WI 34, 6/6/2014 (2014)
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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 SCR 22.17(2). 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.
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¶4 Attorney Osicka has been the subject
of professional discipline on multiple prior
occasions. In 2002 he consented to 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 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.
¶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
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. 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, 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.
Attorney Osicka's license has remained
suspended to the date of this opinion and
order.
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¶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, which is enforced
via SCR 20:8.4(f). Second, by 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), which
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), which
are enforced via SCR 20:8.4(h).
¶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 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.
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¶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 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 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 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 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.
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¶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 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.
¶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 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].
¶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, OLR v. Tim Osicka, 2014 WI
33, _ Wis. 2d _, _ N.W.2d _, I
respectfully dissent.
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