|
ATTORNEY disciplinary proceeding.
Attorney's license suspended.
¶1 PER CURIAM. We review Referee Kim
M. Peterson's recommendation that Attorney
Peter J. Kovac's license to practice law in
Wisconsin be suspended for six months for
four counts of professional misconduct. The
referee also recommended that Attorney Kovac
pay the full costs of this proceeding, which
are $4,403.92 as of December 10, 2019.
¶2 Upon careful review of the matter,
we conclude that the referee's findings of
fact are supported by clear, satisfactory,
and convincing evidence. We agree with the
referee's conclusions of law that Attorney
Kovac engaged in professional misconduct.
We conclude, however, that the appropriate
sanction for Attorney Kovac's misconduct is
a five-month suspension of his license to
practice law in Wisconsin. As the
misconduct at issue in this case occurred
during approximately the same time period as
misconduct that recently resulted in a five-
month license suspension, we find it
appropriate to make the five-month
suspension imposed in this case concurrent
with the five-month suspension in the
previous case. We also agree with the
referee that Attorney Kovac should bear the
full costs of this proceeding. The Office
of Lawyer Regulation (OLR) did not request
restitution, and we impose none.
|
|
¶3 Attorney Kovac was admitted to
practice law in Wisconsin in 1973 and
practiced in Milwaukee. This is his fifth
disciplinary proceeding. 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 the status of
their appeals; continuing to represent a
client after a conflict of interest arose;
and failure to cooperate with the OLR
concerning three of the investigations.
Public Reprimand of Peter J. Kovac, No.
2008-05 (electronic copy available at
https://compendium.wicourts.gov/app/raw/00
20
31.html).
¶4 In 2012, Attorney Kovac received a
public reprimand 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.
¶5 In 2016, Attorney Kovac's license to
practice law was suspended for 90 days for
failing to have a written fee agreement;
failing upon termination of representation
to promptly turn over a client file to
successor counsel; failure to file a notice
of intent to pursue post-conviction relief;
failure to respond to multiple orders from
the court of appeals; and failing to provide
a timely initial response to a grievance and
failing to timely respond to the OLR's
request for a supplemental response to the
grievance. See In re Disciplinary
Proceedings Against Kovac, 2016 WI 62, 370
Wis. 2d 388, 881 N.W.2d 44.
¶6 On May 27, 2020, Attorney Kovac's
law license was suspended for five months,
effective July 8, 2020, for failure to take
steps to the extent reasonably practicable
to protect a client's interests upon
termination of representation; failure to
provide the OLR with timely responses to
grievances; failure to pursue post-
conviction relief after filing a notice of
intent to do so; and failure to act with
reasonable diligence and promptness when
representing a client. See In re
Disciplinary Proceedings Against Kovac,
2020
WI 47, _ Wis. 2d _, _ N.W.2d _.
¶7 On October 1, 2018, the OLR filed a
complaint against Attorney Kovac alleging
five counts of misconduct with respect to
two clients. Attorney Kovac did not file a
timely answer to the complaint. The OLR
moved for default judgment. Just prior to a
telephonic scheduling conference, Attorney
Kovac filed a belated answer to the
complaint. Based upon that filing, the
referee set a new hearing date of April 12,
2019 for the OLR's default judgment motion.
The parties appeared for that hearing, and
the referee denied the OLR's motion.
¶8 On May 31, 2019, the parties entered
into a stipulation whereby the OLR dismissed
Count 1 of its complaint and Attorney Kovac
pled no contest to the other four counts.
¶9 A sanctions hearing was scheduled
for July 17, 2019. Attorney Kovac requested
a continuance, and the matter was
rescheduled to August 15, 2019. Attorney
Kovac was the only witness at the hearing.
At the close of the hearing, the parties
agreed upon a briefing schedule, which
required Attorney Kovac to file his brief on
September 23, 2019. He failed to do so. On
October 22, 2019, he asked the referee for
an additional week to file his brief. The
referee filed her report and recommendation
on November 21, 2019, having never received
a brief from Attorney Kovac. The referee
agreed with the OLR's recommendation for a
six-month suspension of Attorney Kovac's
license.
¶10 The first client matter detailed in
the OLR's complaint involved Attorney
Kovac's representation of L.H. In May of
2015, L.H. retained Attorney Kovac for post-
conviction representation in a criminal
matter in Milwaukee County. Attorney Kovac
was to file a motion for a mistrial and to
represent L.H. at the sentencing hearing.
Attorney Kovac did not memorialize the
terms, scope, and fees of the representation
in a written fee agreement.
¶11 L.H. paid an advanced fee to
Attorney Kovac in excess of $1,000.
Attorney Kovac did not communicate the
purpose and effect of the advanced fee in
writing to L.H.
¶12 On July 8, 2015, Attorney Kovac
filed a motion for a mistrial. Following a
hearing, the motion was denied. On August
13, 2015, Attorney Kovac represented L.H. at
the sentencing hearing, which resulted in a
term of incarceration.
¶13 On September 1, 2015, Attorney Kovac
filed a notice of intent to pursue post-
conviction relief. Thereafter, the State
Public Defender's Office appointed Attorney
Urszula Tempska to represent L.H.
¶14 On October 27, 2015, the circuit
court sent Attorney Tempska a copy of the
court's file, which contained no discovery
materials from the underlying case.
Attorney Tempska attempted to obtain the
discovery from Attorney Kovac, but was
unsuccessful.
¶15 On December 27, 2016, Attorney
Tempska filed a motion to extend the time
limits to file L.H.'s post-conviction
pleadings. This action was necessitated
because despite repeated requests, Attorney
Kovac failed to produce L.H.'s file
containing the discovery.
¶16 On April 5, 2016, L.H. filed a
grievance with the OLR against Attorney
Kovac. The OLR requested a response to the
grievance. Attorney Kovac did not respond.
On September 14, 2016, the OLR filed a
motion requesting Attorney Kovac show cause
why his license should not be temporarily
suspended for failing to cooperate in the
OLR's investigation. This court ordered
Attorney Kovac to show cause. He failed to
respond. On November 14, 2016, this court
temporarily suspended Attorney Kovac's
license. Weeks later, Attorney Kovac filed
a response to the grievance, and the
temporary suspension was lifted on December
16, 2016.
¶17 On February 24, 2017, the OLR
requested supplemental information from
Attorney Kovac in the L.H. grievance matter.
Attorney Kovac failed to respond. On June
6, 2017, Attorney Kovac was personally
served with the OLR's February 24, 2017
correspondence requesting supplemental
information. Attorney Kovac still failed to
respond.
¶18 On September 6, 2017, the OLR filed
a second motion requesting Attorney Kovac to
show cause why his license should not be
temporarily suspended for failure to
cooperate in the L.H. investigation and a
second investigation. This court ordered
Attorney Kovac to show cause. Attorney
Kovac requested additional time to respond,
and this court granted him an extension.
¶19 On October 13, 2017, Attorney Kovac
filed a response to the order to show cause,
indicating he would provide the OLR with a
response. When the OLR received Attorney
Kovac's email response on October 23, 2017,
it was encrypted and incapable of being
opened. Attorney Kovac agreed to re-send
the response. In reliance on that
representation, the OLR asked this court to
hold the temporary suspension matter in
abeyance.
¶20 On November 1, 2017, the OLR filed a
status report with this court indicating
Attorney Kovac had failed to re-send any
response, and had not otherwise contacted
the OLR. Pursuant to the OLR's renewed
request, on December 12, 2017, this court
temporarily suspended Attorney Kovac's
license for a second time. On December 19,
2017, Attorney Kovac provided the OLR with
his response. The OLR informed this court
that it had received the response, and
Attorney Kovac's temporary suspension was
vacated that same day.
¶21 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Kovac's representation of L.H.:
|
|
Count 2: By failing to respond to
successor counsel's repeated requests to
obtain L.H.'s file containing the discovery,
Attorney Kovac violated SCR 20:1.16(d).
|
|
Count 3: By failing to timely
respond to L.H.'s grievance and willfully
failing to respond to the OLR's request for
additional information relating toL.H.'s
grievance, Attorney Kovac violated SCR
22.03(2) and SCR 22.03(6), enforceable via
SCR 20:8.4(h).
¶22 The other client matter detailed in
the OLR's complaint arose out of Attorney
Kovac's representation of L.W., who retained
Attorney Kovac in October 2014 to represent
him in two criminal cases in Milwaukee
County. The charges in one case were
ultimately dismissed. Attorney Kovac
represented L.W. through the sentencing
hearing in the second case.
¶23 L.W. initiated post-conviction
litigation pro se, and he requested his case
file from Attorney Kovac. Attorney Kovac
failed to provide L.W. with the case file.
¶24 On July 21, 2016, L.W. filed a
grievance with the OLR against Attorney
Kovac. On September 16 and October 26,
2016, the OLR requested a response to L.W.'s
grievance, but Attorney Kovac failed to
respond. On December 9, 2016, the OLR
received Attorney Kovac's written response,
indicating that he intended to cooperate.
However, Attorney Kovac failed to further
respond.
¶25 On February 23, 2017, the OLR sent
written notification to Attorney Kovac
concerning his ongoing failure to respond in
the L.W. matter. On June 6, 2017, the OLR
had Attorney Kovac personally served with
all three letters requesting information
about the L.W. grievance. Attorney Kovac
failed to respond.
¶26 On September 6, 2017, the OLR filed
a motion requesting Attorney Kovac show
cause why his license should not be
temporarily suspended for failure to
cooperate in this investigation and the L.H.
investigation. As previously noted, this
court temporarily suspended Attorney Kovac's
license on December 12, 2017, and it
reinstated his license on December 19, 2017
after he finally provided the OLR with his
response in both matters.
¶27 The OLR's complaint alleged the
following counts of misconduct with respect
to Attorney Kovac's representation of L.W.:
|
|
Count 4: By failing to provided
L.W. with his file after the termination of
representation, Attorney Kovac violated SCR
20:1.16(d).
Count 5: By failing to timely
respond to L.W.'s grievance and willfully
failing to respond to the OLR's request for
information relating to L.W.'s grievance,
Attorney Kovac violated SCR 22.03(2) and SCR
22.03(6), enforceable via SCR 20:8.4(h).
¶28 In her report, the referee found
that the OLR had met its burden of proof
with respect to the four counts of
misconduct to which Attorney Kovac pled no
contest. With respect to the appropriate
level of discipline, the referee noted that
since 2008 Attorney Kovac has had multiple
disciplinary matters and the common theme
running through all of them is that he has
exhibited a pattern of procrastination,
delay, and a willful failure to cooperate
with the OLR.
¶29 The referee said failing to turn
over client files and failing to cooperate
with the OLR is serious misconduct. The
referee said when an attorney fails to
respond to a complaint, the OLR is required
to expend time and resources to get the
attorney to cooperate. The referee said
Attorney Kovac argues that his misconduct is
not particularly serious, and said he does
not respond to the OLR's inquiries in a
timely manner because he gives his clients
priority. He also said that his failure to
respond to clients' requests for their files
is not particularly serious since most of
the information in his files is in the
public record already.
¶30 The referee said although it is true
Attorney Kovac seems to give client matters
priority, the choice between representing
clients and responding to the OLR is a false
one since an attorney should be able to do
both. The referee said the fact that
Attorney Kovac finds it difficult to do both
is troubling. The referee also said even if
it is true that Attorney Kovac's clients
files only contain information that is in
the public record, there is no way for the
clients, or successor counsel, to know that
to be true, and Attorney Kovac's failure to
provide the information in a timely manner
causes successor counsel to have to seek the
information by other means, which causes
delay and harm to the client.
¶31 The referee said although Attorney
Kovac does not appear to have a malicious
desire to waste the OLR's time and resources
or harm his clients, that is unfortunately
the end result of his conduct. The referee
said if this type of conduct continues in
the future, it is likely that more clients
will be injured and the OLR will be forced
to waste additional time and resources.
¶32 The referee said that despite prior
public reprimands and short license
suspensions, Attorney Kovac has been
unwilling or unable to change his behavior.
She reasoned that a six-month suspension
would impress upon him the seriousness of
the misconduct and perhaps give him the time
he needs to remedy the difficulties he has
been having handling all of the requirements
that attach to a law license in Wisconsin,
including proper responses to the OLR and
former client requests.
|
|
¶33 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. This 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.
|
|
¶34 As we noted in our recent opinion
imposing a five-month suspension, Attorney
Kovac's habit of procrastination and
dilatory practices continue. The misconduct
at issue in this matter is very similar to
that at issue in the matter in which we
recently imposed a five-month suspension.
In addition, the misconduct in both cases
occurred at approximately the same time. In
the event the counts of misconduct at issue
here had been part of the same OLR complaint
that resulted in the five-month suspension,
it is likely that the court would still have
imposed a five-month suspension. See
In re
Disciplinary Proceedings Against Stewart,
2017 WI 106, 378 Wis. 2d 568, 905 N.W.2d
136. Accordingly, rather than the six-month
suspension recommended by the referee, we
find that five-month suspension, concurrent
with the suspension imposed in the previous
case, is the appropriate sanction for the
misconduct at issue here.
¶35 Finally, we agree with the referee
that Attorney Kovac should bear the full
costs of this proceeding.
¶36 IT IS ORDERED that the license of
Peter J. Kovac to practice law in Wisconsin
is suspended for a period of five months,
effective July 8, 2020, to run concurrent
with the license suspension in In re
Disciplinary Proceedings Against Kovac,
2020
WI 47, _ Wis. 2d _, _ N.W.2d _.
¶37 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 $4,403.92 as of December 10, 2019.
¶38 IT IS FURTHER ORDERED that, to the
extent he has not already done so, 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.
¶39 IT IS FURTHER ORDERED that
compliance with all conditions with this
order is required for reinstatement.
See
SCR 22.28(2).
|