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Attorney Peter J. Kovac, age 60, is from
Milwaukee, Wisconsin.
Grievance #1
On November 17, 1993, Attorney Peter Kovac
was appointed by the Office of State Public
Defender (“SPD”) to provide appellate-level
representation to a man sentenced to life in
prison following his conviction in circuit
court of first-degree intentional homicide
while using a dangerous weapon, and 20
years’ imprisonment for attempted first
degree intentional homicide while using a
dangerous weapon. Kovac had also
represented the man at the trial court
level, not by Public Defender appointment,
but on a private pay basis.
From the time of Kovac’s appointment and
into 1995, there were various communications
between Kovac and his client regarding
pursuit of post-conviction relief.
Kovac wrote to his client on October 18,
1995. Kovac stated: He was convinced the
client should be given a new trial; he had
done extensive research and developed the
belief that the best argument to advance was
that the trial court judge had
unconstitutionally precluded the defense
from presenting essential evidence
indicating that another person and that
person’s brother had the motive, inclination
and opportunity to kill, and attempt to
kill, the crime victims; and developing due
process case law indicated an expansion of a
defendant’s right to present a defense such
as the one Kovac believed had been
improperly precluded at trial. In the same
October 18, 1995 letter Kovac further
stated: He was working on a brief in
support of a motion for a new trial; he
would send the client a copy of the brief
several weeks before it was due so that the
client could review it; if the client was
not satisfied with the brief, Kovac would
withdraw from the representation and allow
appointment of successor counsel; and that
he was accumulating vehicle photos allegedly
relevant to the client’s case.
Kovac wrote to the client on January 22,
1996, and restated his belief that the trial
court had failed to allow presentation of a
full defense and that a new trial should be
granted on those grounds. Kovac indicated a
change of mind regarding the early filing of
a post-conviction motion, and he identified
Monday, February 5, 1996 as the due date for
such a motion based on the timing his
receipt of trial court transcripts. Kovac
told the client that he had copies of the
best case law to support the client’s
position. Kovac told the client he would
bring a draft post-conviction motion and
supporting brief to a meeting with the
client the following Monday afternoon
(January 29, 1996), at which time the two of
them could spend time discussing strategy,
to be followed by the client’s review of the
drafts, and finally, the filing of the
motion and brief on February 5, 1996.
On February 5, 1996, Kovac filed motions in
circuit court for a new trial and sentence
modification. The motion for a new trial
asserted fundamental unfairness and a denial
of due process at the trial level, along
with “newly discovered evidence which was
not available at the time of the trial and
which substantiates the theory of the
defense and undermines the theory of the
prosecution.” As to sentence modification,
Kovac’s motion asserted undue harshness and
abuse of discretion by the trial court. The
combined motions stated that “the factual
and legal bases for these motions are stated
in detail in a memorandum which is being
filed separately.”
The client wrote to Kovac on March 3, 1996,
stating that he had not yet received a copy
of Kovac’s brief in support of the post-
conviction motions. The client expressed
concern about Kovac’s handling of the case,
and he asked Kovac to make arrangements as
soon as possible to get the relevant
materials to him.
On March 29, 1996, Kovac withdrew the two
post-conviction motions that had been filed
on February 5, 1996.
In a letter to Kovac dated April 20, 1996,
the client told Kovac that he had not
received a response to his March 3, 1996
letter, and that he still had not received a
copy of the brief in support of the post-
conviction motions.
On June 3, 1996, Kovac again filed motions
in circuit court for a new trial and
sentence modification.
By order dated June 17, 1996, the circuit
court denied the June 3, 1996 motions,
stating that despite their untimely filing,
they would be addressed so as not to impede
the appellate process of the case, which was
then almost three years into post-conviction
status. As to timeliness, the circuit court
stated:
Defendant asserts in his motion that he
received the last transcript on April 1,
1996; the motion was filed on June 3, 1996,
more than 60 days after the receipt of the
transcript. Sec. 809.30(2)(h), Wis. Stats.
The court reporter who transcribed the final
transcript, which was filed on December 7,
1995, advised the court that she did not
receive payment for the transcript until
January 18, 1996, but mailed it to appellate
counsel upon payment, which was January of
1996. Defendant has not sought an extension
from the Court of Appeals within which to
file a post-conviction motion. This court
assumes the motion would be granted, and not
to generate any further delay in this case,
the court has decided to review the motion.
It merely sets forth this footnote in
rebellion of the delay that has plagued this
case for three years.
As to the substance of the post-conviction
motion for a new trial, the court stated, in
part, “Defendant’s assertion that newly
discovered evidence exists is just that: an
assertion. It is not supported by affidavit
or other documentation…” As to sentence
modification, the trial court stated, “A
life sentence is mandated in first degree
homicide cases; the 20-year sentence imposed
in Count Two was warranted under the
circumstances of this case.”
In a letter to Kovac dated June 19, 1996,
the client inquired as to why he had not
yet received a copy of the post-conviction
motions, supporting cases and any other
materials. The client asked Kovac to
contact him as soon as possible about this
matter. Kovac did not respond to the
client’s June 19, 1996 letter, nor did he
act to inform the client of the circuit
court’s June 17, 1996 denial of the post-
conviction motions. The client learned of
that development directly from the clerk of
circuit court in September, 1996.
In a letter to the client dated April 12,
1997, Kovac stated his opinion that the
client had been treated unfairly by the
circuit court. Kovac further indicated a
continuing belief that the client was
entitled to a new trial. Kovac
added, “There is no dispute, however, that
it is absurd and inexcusable that I have
delayed so long in actually preparing the
appellate brief in your case. My desire for
perfection is no justification for the
extended delay.” Kovac assured his client
that his right to full appellate review had
not been compromised. In his April 12, 1997
letter, Kovac also told the client he would
withdraw from the representation and allow
appointment of successor counsel if the
client so desired, but that he hoped the
client would wait to make any such request
until the end of May, 1997, by which time
Kovac expected to have a brief filed in the
Court of Appeals.
Beginning in May, 1997, Kovac made a series
of representations to his client that he was
engaged in discussions with the district
attorney with a goal of obtaining a
stipulated re-issuance of the circuit court
order denying the post-conviction motion, so
as to allow an appeal to proceed on a
complete record.
From December, 1997 into July, 1998, Kovac
made a series of contacts with the client,
indicating anticipated visits with the
client, but none occurred. The same
contacts referred to purported meetings
scheduled with the district attorney. Later
contacts with the client suggested that
Kovac’s purported contacts with the district
attorney also entailed discussions about the
possibility of stipulating to a new trial or
entry of a plea to a reduced charge.
In a letter to his client dated March 31,
1999, Kovac stated that he had met with the
district attorney in January, but that the
district attorney had not made a definite
offer to stipulate to a new trial nor had he
agreed to a reduced charge. Kovac advised
his client that because of some
controversial judicial elections early in
April, he thought it would be best to wait
until late April before taking the client’s
case back into court. According to Kovac,
by that time, the district attorney should
have decided whether he would offer Kovac’s
client the option of a new trial or a plea
to reduced charge. Kovac indicated he would
visit the client in person the following
month so they could discuss options for
resolving the case before going back to
circuit court.
There is no evidence of any communication
between Kovac and his client from March 31,
1999 until December, 1999.
In a letter to his client dated December 22,
1999, Kovac stated that he anticipated
learning by the end of that month whether
the district attorney would agree to offer
an amended charge of second degree homicide,
which “would make [the client] eligible for
parole in just a few years.” Kovac further
represented to his client that he was then
preparing the formal brief in the matter,
setting forth the basis for a new trial, so
that it would be ready for filing in the
event a negotiated disposition could not be
reached.
Kovac produced no evidence to support his
claim of contact with the district
attorney’s office, and there are no notes or
any other documentation in Kovac’s case file
regarding purported negotiations with the
district attorney.
Subsequent to his December 22, 199 letter,
there is no evidence of any communication
occurring between Kovac and the client until
August, 2002.
On August 8, 2002, the client wrote to
Kovac. The client enclosed his most recent
Program Review Inmate Classification
Summary, and asked Kovac to use it in the
event it might help in gaining post-
conviction relief.
In correspondence dated August 26, 2002, the
client informed Kovac that he had been
transferred to a different prison, and that
his security status had been changed to
medium. The client further stated that he
was looking forward to seeing Kovac
and “hopefully hearing some good news
regarding my appeal or a new trial.”
In the course of its investigation of the
client’s grievance against Kovac, the Office
of Lawyer Regulation (“OLR”) discovered the
client’s August 8 and August 26, 2002
letters in Kovac’s case file, unopened.
There is no evidence of any communication
occurring between Kovac and the client from
the time of the client’s August, 2002
letters and early 2005.
The client sought and obtained assistance
from a clinical program at the University of
Wisconsin Law School, which led to contact
from that program to the SPD’s office in
February, 2005. The program asked for
appointment of successor counsel for the
client, in that Kovac had not advanced the
client’s interests or delivered on promises
of assistance in more than a decade of
representation.
The SPD’s office had administratively closed
the client’s matter in July, 2001. In
correspondence dated March 10, 2005, the
SPD’s office relayed to Kovac the concerns
raised by the law school clinical program.
In its letter, the SPD’s office stated to
Kovac that there seemed to be no explanation
or justification for Kovac’s failure to file
an appeal in 1996, or for Kovac’s allowing
the direct appeal deadlines to pass without
action, or for Kovac’s failure to respond to
the client’s requests for information.
On March 21, 2005, Kovac met with an SPD
attorney, at which time Kovac represented
that following the involvement of the law
school clinical program, he had discussions
with the client, and that he intended to
meet with the client to talk about resolving
the concerns that were brought to the
attention of the clinical program and then
relayed to the SPD’s office.
After hearing nothing further from Kovac,
the SPD attorney followed up with
correspondence to Kovac dated July 13, 2005,
in which the attorney again expressed
concerns regarding Kovac’s representation of
the client. The same letter provided Kovac
with notice that the SPD’s office had
written to the client to ascertain whether
Kovac had addressed the client’s concerns.
On July 13, 2005, the SPD attorney also
wrote to the client, stating that the SPD’s
office had not yet received from the client
the form necessary to a final determination
of his eligibility for appointment of
counsel. The SPD attorney also asked the
client for an indication as to whether he
had had any further discussions with Kovac
which satisfied his concerns about his case
or whether he still wanted other counsel
appointed.
On July 21, 2005, the SPD’s office received
correspondence from the client indicating
that he wanted to withdraw his earlier
request for new counsel, but that he be
allowed to renew the request if Kovac did
not file his appeal by an August, 2005
deadline established by the client.
By letter dated August 1, 2005, Kovac
notified the SPD’s office that the client
wanted him to continue as his lawyer. Kovac
asserted that the client was fully aware of
the legal issues raised by his case and the
various strategies that were available, as
well as the reasons for the excessive
delay.
After receiving no further communication
from the client requesting appointment of
other post-conviction counsel, the SPD’s
office again closed its file on the client’s
case.
The client’s grievance against Kovac was
filed on October 13, 2005.
By letter dated January 10, 2006, OLR
requested that Kovac submit a written
response to the client’s grievance within 20
days. Kovac did not provide a written
response.
On March 13, 2006, Kovac hand-delivered
written correspondence to OLR requesting
that he be allowed additional time to submit
a more complete answer to the grievance, as
he was attempting to hire counsel to
represent him in the matter.
On March 14, March 20, March 27, April 13,
April 19, April 20, and April 21, 2006,
Kovac left various voicemail messages at the
OLR office.
By letter dated April 20, 2006, Kovac
informed OLR that he had a meeting scheduled
with the district attorney to discuss the
client’s case. Kovac also asserted he would
provide a more detailed response to the
grievance “by Tuesday of next week,” which
was April 25, 2006.
On May 25, 2006, Kovac came to the OLR
offices unannounced and informed OLR staff
that he would prepare his formal response to
the client’s grievance and have the response
to OLR no later than Wednesday, May 31 or
Thursday, June 1, 2006. No response was
received from Kovac.
On June 8, 2006, Kovac’s secretary accepted
personal service of a letter from OLR dated
June 6, 2006, requesting that he submit his
full written response to the client’s
grievance by no later than June 23, 2006.
On July 25, 2006, OLR received Kovac’s
written response to the grievance.
On March 8, 2007, Atty. Kovac was personally
served with correspondence from OLR
requesting that he provide additional
information pertaining to the grievance by
no later than March 13, 2006.
After unsuccessful attempts to obtain
additional written responses from Kovac, OLR
served Kovac with a notice for personal
appearance, and Kovac appeared pursuant to
that notice at the OLR offices on April 25,
2007, at which time he was questioned by OLR
staff. Kovac represented to OLR that within
the preceding couple of weeks another lawyer
in the district attorney’s office had been
reviewing the client’s matter, and following
completion of that attorney’s review, there
would either be a negotiated resolution with
a plea, or litigation concerning a request
for a new trial. Kovac also stated that
since July of 2005, he had not communicated
directly with the client concerning the
status of his case.
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In filing a motion for post-conviction
relief that was unsupported by an
evidentiary base, and which was summarily
denied without hearing, Atty. Kovac violated
SCR 20:1.1, which states, “A lawyer shall
provide competent representation to a
client. Competent representation requires
the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the
representation.”
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Atty. Kovac was appointed as the client’s
appellate counsel in November 1993. As late
as August 2005, Atty. Kovac asserted to the
State Public Defender’s Office, “I
realistically expect that [the client’s]
case will be resolved in a few months in the
Circuit Court…” The Public Defender’s
Office closed out its file on the matter
later in 2005. In the more than ten years
that he represented the client, by failing
to take any timely and meaningful measures
to advance the client’s interests, either in
the circuit court or the court of appeals,
Kovac violated SCR 20:1.3 which states, “A
lawyer shall act with reasonable diligence
and promptness in representing a client.”
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In failing over an approximate ten year
period to respond to various requests from
his client for information concerning the
status of his legal matter, including
information pertaining to post-conviction
motions or the filing of an appeal, Kovac
violated former SCR 20:1.4(a), effective
prior to July 1, 2007, which states, “A
lawyer shall keep a client reasonably
informed about the status of a matter and
promptly comply with reasonable requests for
information.”
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In failing to provide a written response to
his client’s grievance within 20 days,
Kovac failed to cooperate with the
investigation, in violation of SCR 22.03(2),
and therefore violated a supreme court rule
regulating the conduct of lawyers, in
violation of SCR 20:8.4(f).
Grievance #2
In a separate matter, a man hired Kovac on
November 13, 1991 for representation on a
State felony charge of Party to the Crime of
First Degree Intentional Homicide While
Armed. Following a jury trial, the client
was convicted of the charge, and on June 1,
1992 he was sentenced to life in prison.
Also on June 1, 1992, the client and Kovac
signed the Criminal Information Sheet,
indicating that the client intended to seek
post-conviction relief.
On June 12, 1992, the clerk of circuit court
received and filed correspondence from the
presiding circuit court judge dated June 5,
1992, together with several attachments, for
inclusion in the court record. In his
letter, the judge referenced three letters
he had received: (a) A May 13, 1992 letter
from Kovac to the district attorney, which
was copied to the judge but not to the
assistant district attorney who tried the
case; (b) a May 27, 1992 letter from Kovac
to the district attorney, again copied to
the judge but not the assistant district
attorney who represented the State at
trial. (Both the May 13 and May 27, 1992
letters had legal memoranda or case law
attached and argued for the district
attorney to intervene in the case and “see
that justice is done”); and (c) a letter
dated May 17, 1992 to the judge, suggesting
that he grant a new trial sua sponte. This
letter, too, was copied to the district
attorney.
According to the judge, he placed on the
record during the June 1, 1992 sentencing
hearing that the letter sent directly to him
by Kovac could be construed as post-
conviction motions. The judge indicated
that it appeared to him that Kovac wanted to
make the motion without being legally tied
to the appellate restrictions which would
result. The judge informed all parties on
the record on June 1, 1992 that he would be
sending the letters for inclusion in the
circuit court file.
On June 19, 1992, Kovac filed a Notice of
Intent to Pursue Post-Conviction Relief with
the clerk of circuit court. The Notice
indicated that Kovac would be providing post-
conviction representation to the client.
The Notice further stated that the client
was not requesting that the State Public
Defender (“SPD”) appoint counsel for the
purposes of post-conviction relief, but that
the client might request assistance from the
SPD’s office in the near future. The SPD’s
office confirmed that Kovac’s post-
conviction representation of the client did
not occur as a result of an SPD appointment.
On August 10, 1994, the client telephoned
Kovac and inquired as to the status of his
matter. According to Kovac, he explained to
the client that he wanted to get an order
from the Court of Appeals setting deadlines
in the case and that there were still some
problems in obtaining the underlying
transcripts. Kovac told the client that he
expected to have the court order back by the
end of that month or in early September
1994, and that after he obtained an order
from the Court of Appeals he would visit the
client at the client’s prison to go over the
situation with him. The client asked
whether a court date and decision would be
obtained during 1994 and Atty. Kovac told
him he expected that “we would get a
decision this year.”
Records from the Wisconsin Supreme Court and
Court of Appeals Case Access indicate that
on June 16, 1995, Kovac filed a motion
requesting an extension of time to file
transcripts. On June 28, 1995, the Court of
Appeals granted an extension until July 31,
1995. There is no record of any further
filings in the court of appeals. The matter
is currently in closed status with the Court
of Appeals.
On June 5, 2006, the client filed a
grievance with the Office of Lawyer
Regulation (“OLR”) alleging that from the
time he hired Kovac in June of 1992, Kovac
had done nothing to seek post-conviction
relief or file an appeal. The client
further alleged that it had been more than a
year since he had seen Kovac, and during
Kovac’s last visit, Kovac indicated he would
be filing a motion, but as of the time of
the grievance, nothing had been filed.
In an August 18, 2006 initial response to
the client’s grievance, Kovac asserted that
while he believed there was a good legal
basis for obtaining a new trial in the
client’s matter, he did not feel it was in
the client’s best interest to get a new
trial and then be convicted again on the
basis of the same eyewitness testimony and
again sentenced to a life term. Kovac
asserted that he had met with the district
attorney to try to get him to reopen the
case. According to Kovac, the district
attorney had reviewed the case, but had not
yet made a final decision about what to do,
and he (the district attorney) was
considering various resolutions of the
case. Kovac asserted that the district
attorney had recently told him that he (the
district attorney) had to contact the family
of the deceased before he could make a final
determination.
Kovac also informed OLR that the case would
either be resolved by agreement with the
State on terms acceptable to the client or
it would proceed to a full post-conviction
review in the circuit court and/or an appeal
in the Court of Appeals. According to
Kovac, the district attorney had already
agreed that if the matter was not resolved
pursuant to stipulation, the district
attorney’s office would agree that the
client was still entitled to a full
appellate review. Kovac told OLR that one
resolution he had discussed with both the
district attorney and his client was for the
case to be reopened and the charge amended
to Second Degree Murder With a Firearm.
Kovac pointed out that if the client had
initially been sentenced on this lesser
charge, the client would still be in
custody, but for a shorter period of time,
and Kovac hoped to obtain a favorable result
for his client. In his August 18, 2006
response to the client’s grievance, Kovac
claimed, “It is even possible that the State
will ultimately agree to release [the
client] and not re-prosecute him because he
has already served enough time. In any
event, this matter will be resolved before
[the district attorney] retires in a few
months. I am confident that [the client]
will be out of custody in a very short
time.”
In correspondence received by OLR on
September 1, 2006, the client acknowledged
receipt of Kovac’s initial response to his
grievance, and stated that on August 25,
2006, Kovac had come to see him about his
case after not having visited for a year.
The client stated that he hoped his matter
would be resolved during 2006, as Kovac
claimed.
On April 25, 2007, Kovac appeared personally
at OLR to answer questions pertaining to the
client’s matter. Kovac brought his case
file, covering both the trial and post-
conviction phases of the representation.
Kovac represented that he had met with the
district attorney approximately seven times
and asked him to review the client’s case
because he (Kovac) thought the client should
have a new trial. Kovac asserted that the
district attorney to whom he referred had
retired, and another attorney in the
district attorney’s office was reviewing the
file and he (Kovac) hoped to hear back from
that attorney by the end of May, 2007.
Kovac represented that the client was aware
that he was waiting to hear back from the
district attorney’s office.
Upon review of Kovac’s case file, OLR
determined that the file contained no
information regarding any communications
with the district attorney’s office, no
correspondence or any other written
communications with the client regarding
case status, and no records or notes of any
personal visits with the client regarding
the status of an appeal or post-conviction
relief. Kovac’s file contained one file
folder labeled “[Client’s name]-December
2006” which contained a document
entitled “Agreement” with a hand written
notation, “Draft,” together with a document
with headings entitled, “Basis for reversal
due to insufficient evidence,” and “Basis
for new trial,” as well as copies of various
court cases.
As of the date of the imposition of this
reprimand, there is no record of any post-
conviction motions or an appeal filed by
Kovac on behalf of the client.
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In failing for at least ten years to file a
post-conviction motion in circuit court or
an appeal, or to otherwise advance the
client’s interests or formally close the
file, Kovac violated SCR 20:1.3, which
states, “A lawyer shall act with reasonable
diligence and promptness in representing a
client.”
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In failing over a period of at least ten
years to communicate with his client on a
regular basis concerning the status of the
client’s legal matter and whether a post-
conviction motion or an appeal had been
filed, Kovac violated former SCR 20:1.4(a),
effective prior to July 1, 2007, which
states, “A lawyer shall keep a client
reasonably informed about the status of a
matter and promptly comply with reasonable
requests for information.”
Grievance #3
A third matter involved Kovac’s
representation of a man who was convicted of
two drug-related felonies in February,
2001. On one count, the client was
sentenced to an 18-year prison term and his
driver’s license was revoked for five
years. The second count led to a sentence
of eight years probation, sentence withheld,
and revocation of the man’s driver’s license
for five years.
On March 28, 2002, the man’s wife hired
Kovac to pursue an appeal on behalf of her
husband. According to the client’s wife,
Kovac informed her that he could handle the
appeal for a flat fee of $1,500. The
client’s wife presented Kovac with a $1,500
check, which Kovac cashed on April 1, 2002.
On December 2, 2005, the client filed a
grievance with the Office of Lawyer
Regulation (“OLR”), alleging that Kovac had
failed to file an appeal in his case; that
Kovac had visited with him only once since
he was incarcerated; and that he had not
received any written or telephonic
communications from Kovac regarding the
status of his matter. The client further
alleged that Kovac failed to return his
wife’s telephonic inquiries as to case
status, and that Kovac failed to respond to
his wife’s letters dated January 19 and
February 11, 2005, in which she requested
information about the matter.
By letter to OLR intake staff dated December
20, 2005, Kovac acknowledged that he
received $1,500 for representation of the
client, and that he had received the
transcripts of the trial-level proceedings.
Kovac asserted he reviewed the transcripts,
and explained to the client in the course of
a prison visit that on the basis of his
review of the case, he did not think it was
likely he would be able to obtain any relief
for the client. Kovac stated that he did
not memorialize his opinion in a writing to
the client. According to Kovac, the client
requested that Kovac continue to work on his
matter and declined a partial refund of the
$1,500 fee. Kovac asserted he subsequently
reviewed additional materials in the court
file and that he had two separate meetings
with assistant district attorneys who had
worked on the client’s case regarding the
possibility of sentence modification. Kovac
indicated in his December 20, 2005
correspondence that the prosecutor who
initially handled the case was not receptive
to sentence modification.
With regard to communication, Kovac asserted
he attempted to meet with his client on at
least three separate trips to the various
prisons where the client was incarcerated,
and on two of those occasions he was not
allowed to see the client due to security
issues at the prison. Kovac could not
provide the specific dates of his purported
visits and attempted visits with his client,
but indicated that he went to one prison two
or three times and on one occasion he was
not allowed to see his client. Kovac’s
client file contained no notes or any other
documentation to substantiate his claimed
visits and attempted visits with his
client. Kovac asserted that following his
meetings with the prosecutors and his review
of the record in the case, he did not
believe any post-conviction relief could be
obtained for the client. Kovac indicated
that he did not refund any of the $1,500 fee
because after his initial offer of a partial
refund was declined, he devoted a
significant amount of additional time
reviewing the case and traveling to meet
with the client. Kovac told OLR intake
staff that in light of the client’s
grievance, he would refund the entire $1,500
back to the client’s wife.
Following designation of the client’s
grievance for formal investigation, in
correspondence dated February 28, 2006, OLR
staff directed Kovac to submit a written
response to the client’s grievance on or
before March 23, 2006. Kovac did not submit
a timely written response.
On June 8, 2006, Kovac’s secretary accepted
personal service of a June 6, 2006 letter
from OLR, which directed Kovac to submit a
written response to the client’s grievance
no later than June 23, 2006.
In a letter to OLR dated July 10, 2006,
Kovac stated that he had been tending to
other client matters and had not yet
prepared his formal written response to the
grievance. Kovac asserted he would be in
Madison the following Wednesday or Thursday
and would hand-deliver his responses at that
time.
On July 25, 2006, Kovac hand-delivered his
written response to the grievance. In his
response, Kovac asserted that he had again
met with the client during the early part of
2006, at which time the client informed
Kovac that he was dissatisfied with his
services. According to Kovac, he explained
to the client that the prosecutors were not
willing to agree to a sentence modification
or any other relief, and there would need to
be a “new factor” in order for the court to
find a legal basis to modify the sentence
over the objection of the prosecutors.
Kovac asserted in his July 25, 2006 response
that he informed the client that he did not
believe there was any evidence to support
sentence modification, and that he would
charge additional legal fees to continue
work towards a formal request for sentence
modification. Kovac stated that, given the
situation, he offered to refund his entire
fee. The client’s wife confirmed that in
late 2006 or early 2007, Kovac delivered to
her a full refund of the $1,500 fee.
In an August 1, 2006 letter to OLR, the
client stated that after Kovac was hired in
March of 2002, he never received any
correspondence or other documentation from
Kovac concerning the status of his case, and
that for several years, it had been
difficult to communicate with Kovac
concerning case status.
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In failing between March 2002 and early 2006
to file an appeal or post-conviction motions
on behalf of the client, or to otherwise
timely act to advance the client’s interests
or close out the matter, Kovac violated SCR
20:1.3, which states, “A lawyer shall act
with reasonable diligence and promptness in
representing a client.”
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In failing between March of 2002 and early
2006 to keep his client informed about the
status of his appeal and/or the
possibilities of sentence modification or
other potential post-conviction relief,
Kovac violated former SCR 20:1.4(a),
effective prior to July 1, 2007, which
states, “A lawyer shall keep a client
reasonably informed about the status of a
matter and promptly comply with reasonable
requests for information.”
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In failing to provide a written response to
the grievance within 20 days, Atty. Kovac
failed to cooperate with the investigation
of the grievance, in violation of SCR 22.03
(2), and therefore violated a supreme court
rule regulating the conduct of lawyers, in
violation of SCR 20:8.4(f).
Grievance #4
On March 19, 2002, a Federal Grand Jury
returned a 10 Count Indictment charging a
man and others with drug trafficking and
related firearms offenses. The same man and
multiple co-defendants also faced two State
kidnapping charges. On or about March 29,
2002, the man hired Kovac to represent him
on the State charges.
By letter dated April 2, 2002, the Assistant
United States Attorney prosecuting the
Federal case wrote to Kovac, indicating that
it was the government’s understanding that
Kovac’s client wished to provide a statement
to law enforcement officials regarding his
knowledge of criminal activity in his
locale. In exchange for the client’s
truthful statements, the government would
agree to not use any information furnished
by the client against him in any criminal or
civil proceedings. The district attorney’s
office handling the State charges had also
apparently agreed to the terms being offered
to the client by the United States
Attorney’s office.
On April 12, 2002, the client formally hired
Kovac to represent him in the Federal case.
On April 29, 2002, Kovac appeared with
his
client at the arraignment in the State case,
at which time the court entered a plea of
not guilty on behalf of the client as to
both counts.
On May 28, 2002, Kovac filed a Motion to
Sever Counts in the State case, requesting
that the kidnapping counts be tried
separately. A motion hearing was scheduled
for June 4, 2002.
On June 4, 2002, the presiding circuit court
judge in the State case ordered that the two
pending kidnapping counts against Kovac’s
client and the other co-defendants be tried
separately. The court set July 29, 2002 as
the trial date for count one in the State’s
case against Kovac’s client.
On June 18, 2002, the United States
Attorney’s Office forwarded a proposed plea
agreement to Kovac, attempting to resolve
the Federal charges then pending against
Kovac’s client. The proposed plea agreement
called for Kovac’s client to plead guilty to
certain counts, with a reduced sentence, and
dismissal of other counts at the time of
sentencing.
On July 10, 2002, Atty. Kovac wrote to the
Assistant United States Attorney prosecuting
the Federal case, seeking a more favorable
plea agreement for his client, pointing out
that the client was utilized by the United
States Government as an effective witness to
implicate others in various crimes committed
in the client’s locale.
Count one of the State’s case against
Kovac’s client was tried to a jury from July
29, 2002 through July 31, 2002, leading to
the client’s conviction on a charge of party
to the crime of kidnapping.
On September 20, 2002, a status conference
was held in the State case, at which time
the court considered a motion filed by
Kovac, requesting that sentencing as to
count one be adjourned until completion of
the trial on count two. The court granted
Kovac’s motion, and set October 28, 2002 as
the date for sentencing on count one and
trial of count two.
On October 18, 2002, Kovac wrote to the
district attorney of the county where the
State case was pending, asking that the
district attorney’s office handle the
prosecution of his client with the interests
of justice in mind, as the client had
cooperated in providing information to the
United States government relative to other
crimes committed in the area.
Count two of the State’s case against
Kovac’s client was tried to a jury from
October 28, 2002 through October 31, 2002,
leading to acquittal as to that count.
Sentencing as to count one was set for a
future date.
On December 13, 2002, the trial court in the
State case sentenced Kovac’s client to the
maximum sentence of 50 years, with the
initial term of confinement in prison to be
30 years, plus 20 years extended supervision
with conditions including restitution in an
amount to be determined by the district
attorney’s office, plus costs relating to
the proceeding.
On January 1, 2003, the client filed a
Notice of Intent to Purse Post-Conviction
Relief in the State case. The Notice
requested that the Public Defender’s office
appoint counsel for purposes of seeking post-
conviction relief.
On February 15, 2003, Kovac notified the
Federal District Court that plea
negotiations were occurring in an attempt to
resolve the pending federal case.
A final pretrial conference in the Federal
case was scheduled for April 29, 2003. A
jury trial was scheduled for May 12, 2003.
On February 28, 2003, the Public Defender’s
Office appointed an attorney other than
Kovac to provide post-conviction
representation to the client in the State
case.
On April 29, 2003, Kovac filed a Motion for
Relief from Government’s Breach of Pretrial
Agreement in the Federal case. The case was
then remanded to the magistrate judge for
further fact-finding. The United States
filed a motion to deny the defendant’s
motion for relief.
By letter dated August 15, 2003, Kovac asked
the judge in the Federal case to defer
ruling on the pending Motion For Relief From
Government’s Breach of Pretrial Agreement
until Kovac completed his investigation
relating to new information he had received
from his client regarding the alleged breach
of the terms of an earlier plea offer from
the United States.
On September 23, 2003, a second successor
attorney was appointed to provide post-
conviction representation to the client in
the State case.
On September 25, 2003, the Federal District
Court entered its decision denying the
client’s Motion for Relief from the
Government’s Breach of a Pretrial agreement.
On October 3, 2003, the Federal District
Court issued a Notice of Hearing and set a
final pretrial conference in the Federal
case for December 9, 2003, and a jury trial
for December 15, 2003. On December 5, 2003,
Kovac filed a motion to reschedule the trial
in the Federal case. That motion was
granted, and the final pretrial hearing was
set for May 14, 2004 and the jury trial for
May 24, 2004. Still further rescheduling
would later occur.
On March 22, 2004, the presiding Federal
judge notified both Kovac and the United
States Attorney’s Office that Kovac’s client
had telephoned the court and left a
voicemail message asking that the court call
the parties to address his concerns
regarding discovery and the alleged failure
of defense counsel to obtain information
from the United States government. The
court stated it was sharing this information
with counsel for both parties since the
court was not to have ex parte
communications with Kovac’s client.
On May 17, 2004, the Federal Court dismissed
three of the pending counts, without
prejudice. On June 3, 2004, Kovac requested
a continuance of a status conference then
scheduled for June 4, 2004.
On June 16, 2004, successor counsel in the
State case filed a Motion for Post-
Conviction Relief on behalf of the client.
The motion asserted that Kovac had provided
ineffective assistance as counsel during his
representation of the client at the trial
stage of the State case.
On June 22, 2004, the United States
Government filed a Motion To Disqualify
Kovac as defense counsel in the Federal
case. As grounds for the motion the United
States asserted:
1. The trial in this case has been
reset several times, causing delays of over
one year due to defense counsel’s lack of
preparation for trial. Defense counsel’s
lack of preparation for trial includes
defense counsel’s failure to meet with
government counsel to discuss discovery
issues after conducting a complete review of
discovery material provided. Defense
counsel’s failure to prepare for trial has
effected the rights of the defendant and the
public to a speedy trial.
2. On June 14, 2004, defendant…filed a
motion for post-conviction relief in a
related prosecution in…Circuit Court. In
the motion for relief, [defendant] alleges
that Mr. Kovac provided ineffective
assistance of counsel during the state court
trial. Defendant’s state court claim opens
the door to an on-the-record examination of
Mr. Kovac in the state proceedings regarding
his representation of [defendant].
Defendant’s allegations of ineffective
assistance relate to the intersection of the
state court trial and the plea negotiations
and debriefing with federal authorities in
the federal case. The motion demonstrates,
at minimum, a potential conflict of interest
between Mr. Kovac and [defendant].
On June 24, 2004, the Federal Court issued
an order granting the United States
Government’s motion to disqualify Kovac as
defense counsel in the Federal case. The
order stated in part:
. . . For the reasons stated on the
record,
the court finds that Attorney Kovac has a
conflict of interest as alleged in the
government’s motion of June 22, 2004.
Moreover, Attorney Kovac has failed to
comply with the court’s order requiring him
to file a status report by June 18, 2002,
and has otherwise unduly delayed the case
with insufficient justification…
The court also granted a request by co-
counsel to withdraw, and ordered the Federal
Defender Service to appoint new counsel for
the defendant.
On September 8, 2004, the Circuit Court in
the State case issued an Order partially
denying successor counsel’s June 16, 2004
Motion for Post-Conviction Relief seeking a
new trial. The Circuit Court did, however,
order an evidentiary hearing on the claim
that Kovac provided ineffective assistance
of counsel when he advised his client not to
testify due to the nature of possible
impeaching evidence.
On March 10, 2005, in a decision from the
bench, the circuit court denied the motion
for post-conviction relief stemming from a
claim of ineffective assistance of trial
counsel. The court stated:
. . .I find his failure to bring a motion
in
limine was not ineffective because a
reasonable view, in my opinion based upon
the testimony I’ve heard and the reading of
the transcript, is that the defendant’s
decision not to testify was more tactical—in
fact was tactical based upon the testimony I
heard and the possible right of the state to
cross examine him on his proffered statement
if he opened the door regarding his knowing,
for example, Mr. [B.], Mr. [W.], and Mr.
[J.] if he denied he knew them. This, Mr.
Kovac admitted, the State could do on cross
examination if in fact the defendant denied
knowing them.
Theoretically, therefore, parts of the
proffered statement might have been used on
cross examination knowing this, probably,
was one of the reasons the defendant chose
not to testify.
The court further stated:
…I find it reasonable to find Mr. Kovac
failed to bring a motion in limine because
he knew his client was not going to testify
any way after discussing it with him during
the lunch hour; and a motion in limine would
have accomplished nothing…
On June 1, 2005, successor counsel in the
State case filed a Notice of Appeal on
behalf of the client.
On July 7, 2005, the client filed his
grievance with OLR alleging that Kovac had
admitted under oath that he was ineffective
by failing to perform a critical task and
that he had been ineffective in a number of
ways due to medical problems. The client
also alleged that Kovac provided ineffective
assistance of counsel to him during his
State criminal trial and asserted that Kovac
had been removed as his lawyer in the
related federal matter.
On August 9, 2005, pursuant to a plea
agreement, the client entered guilty pleas
to counts one and two of the Federal
indictment. On December 2, 2005, the client
was sentenced in the Federal case to 42
months as to Count 1 and 42 months as to
Count 2, to run consecutive for a total term
of 84 months imprisonment. The sentence was
to run consecutive to the sentence imposed
in the State case. The client was also
ordered supervised release of one year as to
Count 1 and one year as to Count 2, to run
consecutively for a total of two years.
On December 15, 2005, the client filed a
Notice of Appeal in the Federal case.
By letter dated December 19, 2005, OLR
requested that Kovac submit a written
response to the client’s grievance within 20
days. Kovac did not provide a written
response to OLR by the deadline date.
By letter dated January 26, 2006, sent by
regular first class and by certified mail,
OLR again requested that Kovac submit a
written response to the client’s grievance,
by no later than February 6, 2006. No
response was received from Atty. Kovac by
the deadline date.
On March 6, 2006, Kovac’s secretary accepted
personal service of a February 27, 2006
letter from OLR to Kovac, requesting Kovac’s
written response to the client’s grievance
within seven days of personal service, i.e.,
by no later than March 13, 2006.
By letter dated March 13, 2006, Kovac
submitted some information regarding the
client’s grievance and indicated he was
trying to hire counsel to represent him,
after which he would submit a more complete
response to the grievance.
By letter dated April 20, 2006, Kovac
notified OLR that he had just received a
copy of an Order from the Wisconsin Court of
Appeals granting the client a new trial in
the State case. Kovac stated that he would
provide a more complete response to the
client’s grievance by “Tuesday of next
week,” which was April 25, 2006. Kovac did
not file the promised complete response by
April 25, 2006.
On or about May 11, 2006, an attorney other
than Kovac was appointed as defense counsel
for the remanded trial in the State case.
Following a May, 2007 trial, the client was
found guilty of amended felony charges of
party to the crime of kidnapping, and
aggravated battery.
On June 8, 2006, Kovac’s secretary accepted
personal service of a June 6, 2006 letter
from OLR, requesting that Kovac submit his
written response to the client’s grievance
by no later than June 23, 2006. No response
was received from Atty. Kovac.
On July 25, 2006, Kovac hand-delivered his
response to the client’s grievance. In his
response, Kovac asserted that the claim that
he was ineffective in his representation of
the client in the State case was the subject
of a Machner hearing, leading to a ruling
that he was not ineffective.
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Kovac engaged in an impermissible conflict
of interest by continuing to represent the
client in the Federal case following the
client’s June 14, 2004 filing of a motion
for post-conviction relief in the State
case, which was based on an assertion that
Kovac had provided ineffective assistance of
counsel at the trial stage. The post-
conviction motion opened the possibility of
an on-the-record examination of Kovac in the
State proceedings regarding representation
at trial, plea negotiations, and the
client’s debriefing by Federal authorities.
When he learned of the post-conviction
motion in the State case and its basis,
Kovac should have taken steps to inform the
client that his continued representation of
the client in the Federal case might have
been materially limited by his own interests
in responding to the ineffective assistance
claim in the State case, and any continued
representation in the Federal case could
occur only with the client’s written consent
following consultation. By continuing to
represent the client in the Federal case
after the client’s filing of the ineffective
assistance claim in State court, without
engaging in the requisite consultation and
obtaining the client’s written consent to
the continued representation, Kovac violated
former SCR 20:1.7(b) (effective prior to
July 1, 2007), which stated, “A lawyer shall
not represent a client if the representation
of that client may be materially limited by
the lawyer’s responsibilities to another
client, or a third person, by the lawyer’s
own interests, unless: (1) the lawyer
reasonably believes the representation will
not be adversely affected; and (2) the
client consents in writing after
consultation . . .”
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In failing to provide a written response to
the client’s grievance within 20 days, Atty.
Kovac failed to cooperate with the
investigation of the grievance, in violation
of SCR 22.03(2), and therefore violated a
supreme court rule regulating the conduct of
lawyers, in violation of SCR 20:8.4(f).
In accordance with SCR 22.09(3), Attorney
Peter J. Kovac is hereby publicly
reprimanded.
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