Proceedings before a referee

(1) The referee has the powers of a judge trying a civil action and shall conduct the hearing as the trial of a civil action to the court. The rules of civil procedure and evidence shall be followed. The referee shall obtain the services of a court reporter to make a verbatim record of the proceedings, as provided in SCR, Chapter 71. 172 (2) The hearing shall be held in the county of the respondent's principal office or, in the case of a non-resident attorney, in the county designated by the director. The referee, for cause, may designate a different location. (3) Unless otherwise provided by law or in this chapter, the hearing before a referee and any paper filed in the proceeding is public. (4)(a) If in the course of the proceeding the respondent claims to have a medical incapacity that makes the defense of the proceeding impossible, the referee shall conduct a hearing and make findings concerning whether a medical incapacity makes defense of the proceeding impossible. The referee may order the examination of the respondent by qualified medical or psychological experts. files, (b) All papers, transcripts, communications, and proceedings on the issue of medical incapacity shall be confidential and shall remain confidential until the supreme court has issued an order suspending the attorney's license to practice law, or has otherwise authorized disclosure. (c) If the referee finds no medical incapacity that would make the defense of the proceeding impossible, the referee shall proceed with the misconduct action. (d) If the referee finds that a medical incapacity makes the defense of the proceeding impossible, the referee shall file a report promptly with the supreme court. If the court disapproves the referee's finding, the court shall direct the referee to proceed with the misconduct action. If the court approves the referee's finding, the court shall abate the misconduct proceeding and suspend the respondent's license to practice law for medical incapacity until the court orders reinstatement of the attorney's license under SCR 22.36. Upon reinstatement, the court shall direct the referee to proceed with the misconduct action. (5) The office of lawyer regulation has the burden of demonstrating by clear, satisfactory and convincing evidence that the respondent has engaged in misconduct. (6) Within 30 days after the conclusion of the hearing, the filing of the hearing transcript, or the filing of a final post-hearing brief, whichever is later, the referee shall file with the supreme court a report setting forth findings of fact, conclusions of law regarding the respondent's misconduct, if any, and a recommendation for dismissal of the proceeding or the imposition of specific discipline, or a statement 173 advising the court why the referee cannot comply with this deadline and the date by which the referee will file the report and recommendation. the supreme court a recommendation as to the assessment of reasonable costs within 10 days after the parties' submissions regarding assessment of costs. referee shall file with (7) The COMMENT The court's general policy regarding assessment of costs in lawyer disciplinary matters is set forth in SCR 22.24. Procedures for filing the statement on costs and objecting to a statement on costs are set forth in SCR 22.24 (2). If the respondent does not object to the statement of costs then the referee's recommendation regarding costs shall be filed within 10 days of the deadline for filing an objection. If an objection is filed the recommendation shall be filed within 10 days after receiving the OLR's reply to the objection. COMMENT Wis. Stat. ch. 785 defines "contempt" and provides that a "court of record" may find a person in contempt and impose sanctions. A referee presiding over a lawyer disciplinary proceeding is not a "court of record." See also In re Disciplinary Proceedings Against Strasburg, 217 Wis. 2d 318, 577 N.W.2d 1 (1998) (setting forth procedure to address contempt scenario in disciplinary proceeding).