¶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.

¶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."

¶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).

¶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.

¶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.