2016 WI 62
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP654-D
COMPLETE TITLE: In the Matter of Disciplinary Proceedings
Against Peter J. Kovac, Attorney at Law:
Office of Lawyer Regulation,
Complainant,
v.
Peter J. Kovac,
Respondent.
DISCIPLINARY PROCEEDINGS AGAINST KOVAC
OPINION FILED: July 8, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
2016 WI 62
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP654-D
STATE OF WISCONSIN : IN SUPREME COURT
In the Matter of Disciplinary Proceedings
Against Peter J. Kovac, Attorney at Law:
Office of Lawyer Regulation, FILED
Complainant,
JUL 8, 2016
v.
Diane M. Fremgen
Clerk of Supreme Court
Peter J. Kovac,
Respondent.
ATTORNEY disciplinary proceeding. Attorney's license
suspended.
¶1 PER CURIAM. We review referee James J. Winiarski's
recommendation that Attorney Peter J. Kovac be declared in
default and that his license to practice law in Wisconsin be
suspended for 90 days for professional misconduct. The referee
also recommended that Attorney Kovac pay the full costs of the
proceeding, which are $1,824.83 as of February 2, 2016.
No. 2015AP654-D
¶2 We declare Attorney Kovac to be in default. We agree
with the referee that Attorney Kovac's professional misconduct
warrants a 90-day suspension of his license to practice law in
Wisconsin. We also agree that Attorney Kovac should pay the
full costs of this proceeding.
¶3 Attorney Kovac was admitted to practice law in
Wisconsin in 1973 and practices in Milwaukee. In 2008, he
agreed to a consensual public reprimand for failure to
competently represent a criminal appellate client; failure to
diligently represent three criminal clients; failure to
communicate with clients; failure to communicate with clients
about their appeal status; continuing to represent a client
after a conflict of interest arose; and failing to cooperate
with the Office of Lawyer Regulation (OLR) concerning three of
the investigations. Public Reprimand of Peter J. Kovac, 2008-
OLR-05. In 2012, Attorney Kovac was publicly reprimanded for
failure to timely respond to a notice of formal investigation
from the OLR. See In re Disciplinary Proceedings Against Kovac,
2012 WI 117, 344 Wis. 2d 522, 823 N.W.2d 371.
¶4 On April 2, 2015, the OLR filed a complaint against
Attorney Kovac alleging seven counts of misconduct with respect
to two client matters. The first client matter detailed in the
OLR's complaint involved Attorney Kovac's representation of
K.R., who hired Attorney Kovac to defend him on felony criminal
charges pending in the United States District Court for the
Eastern District of Wisconsin. K.R. paid Attorney Kovac an
initial fee of $5,000 via credit card. Attorney Kovac did not
2
No. 2015AP654-D
enter into a written fee agreement with K.R. Attorney Kovac
discussed a $15,000 to $25,000 range as fees for K.R.'s felony
matter. After the first day of trial, Attorney Kovac received
an additional $2,500 paid from K.R.'s credit card. K.R.
subsequently rescinded the $2,500 payment.
¶5 K.R. was convicted and sentenced to a six-month term
of incarceration, supervised release, and restitution. Attorney
Jeffrey Jensen filed a motion to substitute as K.R.'s attorney,
which was granted. After being appointed as successor counsel,
Attorney Jensen attempted on numerous occasions to obtain the
client file from Attorney Kovac, but Attorney Kovac failed to
respond.
¶6 Attorney Jensen filed a motion to compel, requesting
Attorney Kovac be ordered to turn over his client file. The
district court issued an order directing Attorney Kovac to turn
over the client file. The order stated that failure to turn
over the file would cause the United States Marshal to arrest
Attorney Kovac and hold him in custody until he had turned over
the file. Attorney Kovac delivered K.R.'s file to Attorney
Jensen's office prior to the deadline established in the
district court's order.
¶7 K.R. filed a grievance against Attorney Kovac. The
OLR notified Attorney Kovac of its investigation and requested
him to submit a written response to the grievance. Attorney
Kovac failed to respond. It was not until after this court
issued an order to show cause as to why Attorney Kovac's law
license should not be suspended that he responded to the
3
No. 2015AP654-D
grievance. The OLR withdrew its motion for a temporary
suspension of Attorney Kovac's license.
¶8 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kovac's representation of
K.R.:
[Count 1] By failing to have a written fee agreement
when the total legal costs of the representation in
connection with K.R.'s federal criminal matter were
more than $1,000 and having received a $5,000 retainer
from [K.R.], Kovac violated SCR 20.1.5(b)(1) and (2).1
[Count 2] By failing upon termination of
representation, to promptly turn over his client file
for representation of K.R. in the federal criminal
matter to successor counsel, Kovac violated SCR
20:1.16(d).2
1
SCR 20:1.5(b)(1) provides:
The scope of the representation and the basis or rate
of the fee and expenses for which the client will be
responsible shall be communicated to the client in
writing, except before or within a reasonable time
after commencing the representation when the lawyer
will charge a regularly represented client on the same
basis or rate as in the past. If it is reasonably
foreseeable that the total cost of representation to
the client, including attorney's fees, will be $1000
or less, the communication may be oral or in writing.
Any changes in the basis or rate of the fee or
expenses shall also be communicated in writing to the
client.
SCR 20:1.5(b)(2) provides: "If the total cost of
representation to the client, including attorney's fees, is more
than $1000, the purpose and effect of any retainer or advance
fee that is paid to the lawyer shall be communicated in
writing."
2
SCR 20:1.16(d) provides:
(continued)
4
No. 2015AP654-D
[Count 3] By failing to timely provide a written
response to OLR in the matter of the grievance of
K.R., Kovac violated SCR 22.03(2)3 and SCR 22.03(6)4
enforced via SCR 20:8.4(h).5
Upon termination of representation, a lawyer shall
take steps to the extent reasonably practicable to
protect a client's interests, such as giving
reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and
property to which the client is entitled and refunding
any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by
other law.
3
SCR 22.03(2) provides:
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
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.
4
SCR 22.03(6) provides: "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."
5
SCR 20:8.4(h) provides: "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(6), or SCR
22.04(1)."
5
No. 2015AP654-D
¶9 The second client matter detailed in the OLR's
complaint arose out of Attorney Kovac's representation of A.B.
in a Milwaukee County criminal matter. A.B. entered a guilty
plea to two drug-related charges, was found guilty, and was
sentenced. Attorney Kovac did not file a notice of intent to
appeal. A.B. filed a pro se motion to extend the time to file a
notice of intent to appeal, seeking post-conviction relief.
A.B. contacted Attorney Kovac on numerous occasions trying to
obtain his client file so that successor counsel could perfect
post-conviction relief in the criminal matter. Attorney Kovac
failed to respond. The court of appeals directed Attorney Kovac
to respond to A.B.'s motion, but Attorney Kovac failed to
comply.
¶10 Attorney Kevin Gaertner was appointed successor
counsel for A.B. Attorney Gaertner repeatedly asked Attorney
Kovac to turn over the client file in the criminal matter, but
Attorney Kovac never delivered the file to Attorney Gaertner.
Attorney Gaertner finally received the file from the State
Public Defender's office.
¶11 A.B. filed a grievance against Attorney Kovac. As in
the K.R. matter, Attorney Kovac failed to respond to the OLR's
repeated requests for a response to the grievance and it was not
until after this court had issued an order to show cause why
Attorney Kovac's license should not be temporarily suspended for
6
No. 2015AP654-D
his failure to respond to the OLR that he finally filed a
response and the OLR withdrew its motion.
¶12 The OLR's complaint alleged the following counts of
misconduct with respect to Attorney Kovac's handling of the A.B.
matter:
[Count 4] By failing to file the notice of intent to
pursue post conviction relief in the A.B. matter,
[Attorney] Kovac violated SCR 20:1.3.6
[Count 5] By failing, upon termination of
representation, to respond to phone calls and letters
from A.B. relating to requests to return his file so
that he could pursue post-conviction relief,
[Attorney] Kovac violated SCR 20:1.16(d).
[Count 6] By failing to respond to multiple Orders
from the Court of Appeals requesting that Attorney
Kovac provide a response concerning whether he had
counseled A.B. regarding the decision to seek post-
conviction relief, [Attorney] Kovac violated SCR
20:3.4(c).7
[Count 7] By failing to provide a timely initial
response to A.B.'s grievance and by failing to timely
respond to OLR's request for a supplemental response
to A.B.'s grievance, [Attorney] Kovac violated SCR
22.03(2) and SCR 22.03(6), enforced via 20:8.4(h).
¶13 The referee was appointed on July 14, 2015. After
Attorney Kovac failed to file an answer to the complaint, the
OLR filed a notice of motion and motion for default judgment.
6
SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
7
SCR 20:3.4(c) provides: "A lawyer shall not: . . . .
knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid
obligation exists."
7
No. 2015AP654-D
The referee advised the parties that a telephone scheduling
conference would be held on August 12, 2015. On August 11,
2015, at approximately 4:40 p.m., Attorney Kovac left a voice
message with the referee's office asking for an adjournment of
the telephonic scheduling conference. The referee issued an
order adjourning the telephonic scheduling conference to
September 15, 2015. The referee also ordered Attorney Kovac to
file his answer to the complaint on or before September 11,
2015. The referee advised Attorney Kovac that the OLR had filed
a motion for default judgment and that the referee would not
further extend the time to file an answer.
¶14 Attorney Kovac failed to file an answer by the
September 11, 2015 extended deadline. He also failed to
participate in the telephonic scheduling conference on September
15, 2015, at which time the OLR orally renewed its motion for
default judgment. On October 1, 2015, the referee issued an
order declaring Attorney Kovac to be in default.
¶15 On October 8, 2015, the referee issued an order
granting the parties the opportunity to file written argument
with respect to the appropriate discipline. The referee gave
Attorney Kovac until November 20, 2015 to file a response to the
OLR's written argument and authorities. Attorney Kovac failed
to file a response by November 20, 2015. On November 23, 2015,
Attorney Kovac sent the referee a letter in which he claimed
8
No. 2015AP654-D
that he had tried to drop off a response at the referee's office
on November 20. The November 23 letter included a copy of the
response in which Attorney Kovac referenced various mitigating
circumstances.
¶16 In response to Attorney Kovac's letter, the referee
sent a letter to both parties indicating that if Attorney Kovac
wanted to have a hearing on the appropriate discipline and
mitigating circumstances, he was to discuss available dates and
times with the OLR. The referee also advised Attorney Kovac
that the referee would not reopen the case and that the
declaration of default would remain in place. Attorney Kovac
was advised that the referee considered time to be of the
essence and that the referee would not grant any additional time
to Attorney Kovac to arrange a hearing. Attorney Kovac failed
to take any action, did not contact the OLR to arrange a date
and time for the suggested hearing, and never filed an answer or
otherwise responded to the OLR's complaint.
¶17 The referee issued his report and recommendation in
the matter on January 19, 2016. The referee found that the OLR
had met its burden of proof with respect to all seven counts of
misconduct alleged in the complaint. With respect to the
appropriate level of discipline, the referee pointed to Attorney
Kovac's two prior public reprimands and commented that there
appears to be a pattern of misconduct whereby Attorney Kovac
9
No. 2015AP654-D
fails to properly represent his clients and there is also a
disturbing pattern of Attorney Kovac failing to cooperate in OLR
investigations. The referee opined that Attorney Kovac's
continuing misconduct shows disrespect for supreme court rules
and his obligations as a practicing attorney. The referee
explained:
The respondent's misconduct is serious in nature. He
intentionally neglects clients. He intentionally
fails to cooperate with successor counsel. He
intentionally fails to cooperate with OLR
investigations. He ignores orders issued by courts,
including appellate courts.
By my count, respondent has now failed to cooperate
with at least six OLR investigations of misconduct.
His failure to cooperate is not an oversight or a
mistake, but rather an intentional course of
misconduct in defiance of his obligations as a
Wisconsin lawyer. Also, he has now failed to file an
answer in two disciplinary cases involving three
separate grievances.
When I review respondent's behavior in the past two
public reprimands with his conduct in this case, I
note another troublesome pattern. Respondent, during
his representation of clients and in his handling of
grievances, takes a course of delay, excuses, and
misrepresentations. Repeated promises to clients,
courts, OLR, and referees are simply never complied
with. Instead, they are replaced with new promises to
clients, courts, OLR, and referees.
In the present case, respondent was given multiple
chances to file an answer. Rather than file an
answer, he would appear at my office after deadlines
had passed and essentially ask for more time. When he
would be given additional time, he would again fail to
respond. In the present case, he filed a late letter
indicating he wanted to be heard on mitigating
circumstances, but never follows through with any
efforts to secure a hearing that was offered to him on
the subject of mitigating circumstances.
10
No. 2015AP654-D
The pattern of non-cooperation, delay,
misrepresentation in representing clients and in
responding to grievances is now most apparent.
Further complicating the situation is the fact that
respondent, in defaulting in the last two disciplinary
cases, has not provided any explanations for his
conduct. I fear that such conduct will continue and
will cause harm in the future to respondent's clients.
¶18 The referee commented that two prior public reprimands
failed to change Attorney Kovac's behavior, and the referee said
a higher level of discipline was needed to protect the public,
the courts, and the legal system from a repetition of Attorney
Kovac's misconduct. Accordingly, the referee recommended that
Attorney Kovac's license to practice law in Wisconsin be
suspended for 90 days. The referee also recommended that
Attorney Kovac be ordered to pay the entire cost of the
disciplinary proceeding.
¶19 Supreme court rule 22.17 provides that an appeal from
a referee's report must be filed within 20 days after the filing
of the report. Since the referee's report was filed on January
19, 2016, Attorney Kovac's appeal needed to be filed by February
8, 2016 in order to be timely. Attorney Kovac did not file a
timely appeal. Instead, on February 12, 2016, he filed a letter
asking for additional time to file a formal response to the
referee's report. This court construed the letter as a motion
to extend the time to file an appeal. By order dated March 7,
2016, this court denied the motion.
11
No. 2015AP654-D
¶20 Although Attorney Kovac was given the opportunity to
file an answer and present a defense to the OLR's complaint, he
failed to do so. Accordingly, we declare him to be in default.
¶21 A referee's findings of fact are affirmed unless
clearly erroneous. Conclusions of law are reviewed de novo.
See In re Disciplinary Proceedings Against Eisenberg, 2004 WI
14, ¶5, 269 Wis. 2d 43, 675 N.W.2d 747. The court may impose
whatever sanction it sees fit, regardless of the referee's
recommendation. See In re Disciplinary Proceedings Against
Widule, 2003 WI 34, ¶44, 261 Wis. 2d 45, 660 N.W.2d 686. We
adopt the referee's findings of fact and agree with the
referee's conclusions of law that Attorney Kovac violated the
supreme court rules referenced above.
¶22 We also agree with the referee that a 90-day
suspension of Attorney Kovac's license to practice law in
Wisconsin is an appropriate sanction for his misconduct. We
share the referee's concern that, in spite of receiving two
prior public reprimands for, among other things, failing to
diligently represent and communicate with criminal clients and
failing to cooperate with the OLR's investigation into pending
grievances, Attorney Kovac has continued to engage in the same
type of behavior that led to the public reprimands. As we have
oft noted, Wisconsin follows the concept of progressive
discipline. See In re Disciplinary Proceedings Against Brandt,
12
No. 2015AP654-D
2012 WI 8, ¶21, 338 Wis. 2d 524, 808 N.W.2d 687. We agree with
the referee that a 90-day suspension is necessary to protect the
public, the courts, and the legal system from repetition of
Attorney Kovac's misconduct; impress upon the attorney the
seriousness of his misconduct; and deter other attorneys from
committing similar misconduct.
¶23 In addition, we find that a 90-day suspension is
generally consistent with the sanction imposed in other somewhat
similar cases. Although no two disciplinary proceedings are
identical, we find this fact situation generally analogous to In
re Disciplinary Proceedings Against Wood, 2014 WI 116, 358
Wis. 2d 472, 854 N.W.2d 844. In Wood, an attorney received a
90-day suspension for seven counts of misconduct that included
failing to provide a client with a written fee agreement,
failing to respond to a client's requests for information, and
failing to respond to the OLR's investigation into his
misconduct.
¶24 Finally, we agree with the referee that Attorney Kovac
should bear the full costs of this proceeding.
¶25 IT IS ORDERED that the license of Peter J. Kovac to
practice law in Wisconsin is suspended for a period of 90 days,
effective August 12, 2016.
13
No. 2015AP654-D
¶26 IT IS FURTHER ORDERED that within 60 days of the date
of this order, Peter J. Kovac shall pay to the Office of Lawyer
Regulation the costs of this proceeding, which are $1,824.83.
¶27 IT IS FURTHER ORDERED that Peter J. Kovac shall comply
with the provisions of SCR 22.26 concerning the duties of an
attorney whose license to practice law has been suspended.
¶28 IT IS FURTHER ORDERED that compliance with all
conditions of this order is required for reinstatement. See SCR
22.28(2).
14
No. 2015AP654-D
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