Office of Lawyer Regulation v. Peter J. Kovac ( 2020 )

2020 WI 58SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP1872-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: June 23, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
Per Curiam
NOT PARTICIPATING:
ATTORNEYS:
2020 WI 58NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP1872-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, JUN 23, 2020
v. Sheila T. Reiff
Clerk of Supreme Court
Peter J. Kovac,
Respondent.
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,
No. 2018AP1872-D
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/002031.html).
¶4 In 2012, Attorney Kovac received a public reprimand for
failure to timely respond to a notice of formal investigation from
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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
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No. 2018AP1872-D
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.
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No. 2018AP1872-D
¶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.
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No. 2018AP1872-D
¶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
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No. 2018AP1872-D
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).1
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 to L.H.'s
1 SCR 20:1.16(d) provides:
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.
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No. 2018AP1872-D
grievance, Attorney Kovac violated SCR 22.03(2)2 and
SCR 22.03(6),3 enforceable via SCR 20:8.4(h).4
¶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.
2 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 a
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.
3 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."
4 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(2), SCR 22.03(6), or
SCR 22.04(1)."
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No. 2018AP1872-D
¶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).
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No. 2018AP1872-D
¶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,
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No. 2018AP1872-D
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.
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No. 2018AP1872-D
¶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.
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No. 2018AP1872-D
¶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).
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No. 2018AP1872-D
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