Office of Lawyer Regulation v. Kovac (In re Kovac)

391 Wis.2d 719

943 N.W.2d 504

2020 WI 47

In the MATTER OF DISCIPLINARY PROCEEDINGS AGAINST Peter J. KOVAC, Attorney at Law:

Office of Lawyer Regulation, Complainant-Respondent,

v.Peter J. Kovac, Respondent-Appellant.

No. 2016AP2522-D

Supreme Court of Wisconsin.

Opinion Filed: MAY 27, 2020

ATTORNEY disciplinary proceeding. Attorney's license suspended.

PER CURIAM.

¶1 Attorney Peter J. Kovac has appealed Referee Richard M. Esenberg's recommendation that his license to practice law in Wisconsin be suspended for five months for seven counts of professional misconduct. The referee also recommended that Attorney Kovac pay the full costs of this proceeding, which are $7,401.87 as of December 11, 2019.

¶2 Upon careful review of the matter, we agree with the referee that Attorney Kovac's professional misconduct warrants a five-month suspension of his license to practice law in Wisconsin. We also agree that Attorney Kovac should bear the full costs of this proceeding. The OLR did not request restitution, and no restitution is ordered.

¶3 Attorney Kovac was admitted to practice law in Wisconsin in 1973 and practices in Milwaukee. He has been the subject of professional discipline on three prior occasions. 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 appeals' 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, No. 2008-05 (electronic copy available at https://compendium.wicourts.gov/app/raw/002031.html ).

¶4 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.

¶5 In 2016, Attorney Kovac's law license 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 December 29, 2016, the OLR filed a complaint against Attorney Kovac alleging seven counts of misconduct with respect to three client matters. The complaint also alleged that Attorney Kovac failed to cooperate with the OLR's investigation into one grievance.

¶7 The first client matter detailed in the OLR's complaint involved Attorney Kovac's representation of M.M., who hired Attorney Kovac to represent him to pursue post-conviction relief. M.M. was convicted of two felony counts and sentenced in June 2014. On July 3, 2014, Attorney Kovac filed a notice of intent to pursue post-conviction relief on M.M.'s behalf and represented him during the late summer and early fall of 2014.

¶8 After September 2014, Attorney Kovac failed to pursue post-conviction relief on M.M.'s behalf, failed to respond to his inquiries as to the status of his appeal, and the time to appeal expired.

¶9 M.M. requested an extension of time to pursue post-conviction relief.

¶10 On April 24, 2015, the State Public Defender's office appointed Attorney Angela Kachelski as M.M.'s appellate counsel. Between July 31, 2015 and November 2015, Attorney Kachelski made numerous telephone calls and written attempts to contact Attorney Kovac to obtain M.M.'s file, but Attorney Kovac failed to respond. M.M. personally sent letters to Attorney Kovac requesting that his file be turned over to Attorney Kachelski, but Attorney Kovac failed to respond.

¶11 In August 2015 and October 2015, Attorney Kachelski filed motions to extend time to file notice of appeal or post-conviction motions with the court of appeals. That court extended the deadline for M.M. to file a post-conviction motion or a notice of appeal to December 11, 2015.

¶12 On November 24, 2015, Attorney Kachelski received a message from Attorney Kovac saying he would get the file materials to her "this week." Attorney Kovac failed to turn over the file.

¶13 On November 30, 2015, Attorney Kachelski left Attorney Kovac a voicemail message saying she could pick up the file from him any time or any place. Attorney Kovac failed to respond.

¶14 On December 2, 2015, Attorney Kachelski called Attorney Kovac, but his voicemail box was full and no longer accepting messages.

¶15 Attorney Kachelski filed four more notices of motion to extend time to file a notice of appeal or post-conviction motion with the court of appeals between December 2015 and June 2016. During that time period, Attorney Kachelski made numerous attempts to obtain the file from Attorney Kovac, but Attorney Kovac failed to turn over the file.

¶16 Attorney Kachelski filed a grievance with the OLR against Attorney Kovac. On November 20, 2015 and January 6, 2016, the OLR provided Attorney Kovac with notice of the grievance and requested a response. Attorney Kovac failed to respond.

¶17 On March 9, 2016, the OLR filed a notice of motion and motion requesting an order to show cause as to why Attorney Kovac's license should not be suspended for willful failure to cooperate with the OLR's investigation of the grievance. This court issued an order to show cause on March 10, 2016 requiring Attorney Kovac to show in writing within 20 days why the OLR's motion should not be granted. On April 25, 2016, Attorney Kovac provided the OLR with an initial response to the grievance so the OLR withdrew its motion. In that response, Attorney Kovac said he would get the file to Attorney Kachelski, but he failed to do so.

¶18 The OLR's complaint alleged the following counts of misconduct with respect to Attorney Kovac's representation of M.M.:

Count 1 : Upon termination of representation, in failing to deliver his file to successor counsel, despite repeated requests that he do so, Attorney Kovac violated SCR 20:1.16(d).¹

Count 2 : By failing to provide the OLR with a timely written response to the grievance in the M.M. matter, Attorney Kovac violated 22.03(2)² and SCR 22.03(6),³ enforceable via SCR 20:8.4(h).⁴

¶19 The second client matter detailed in the OLR's complaint arose out of Attorney Kovac's representation of E.B., who hired Attorney Kovac to represent him on sexual assault charges. In January 2010, E.B. was sentenced to 20 years in prison. He paid Attorney Kovac $5,000 to represent him in an appeal.

¶20 On February 12, 2012, Attorney Kovac filed a notice of intent to pursue post-conviction relief for sentence reduction. Attorney Kovac failed to file a motion in circuit court or an appeal relating to post-conviction relief for sentence reduction.

¶21 E.B. filed a grievance against Attorney Kovac. In letters of September 1, 2015 and October 14, 2015, the OLR provided Attorney Kovac with a notice of the grievance and requested a response. Attorney Kovac failed to respond.

¶22 In January 2016, the OLR filed a notice of motion and motion requesting an order to show cause as to why Attorney Kovac's license should not be suspended for willful failure to cooperate with the OLR's investigation of the grievance. This court issued an order to show cause and subsequently granted Attorney Kovac an extension of time to file his response. In February 2016, Attorney Kovac provided the OLR with an initial response to the E.B. grievance so the OLR withdrew its motion. In July 2016, the OLR requested additional information from Attorney Kovac in the E.B. matter, but Attorney Kovac failed to respond.

¶23 The OLR's complaint alleged the following counts of misconduct with respect to Attorney Kovac's handling of the E.B. matter:

Count 3: After filing a notice of intent to pursue post-conviction relief, by thereafter failing to pursue post-conviction relief in circuit court or an appeal, Attorney Kovac violated SCR 20:1.3.⁵

Count 4: By failing to provide the OLR with timely written responses to the grievance, Attorney Kovac violated SCR 22.03(2) and SCR 22.03(6), enforceable via SCR 20:8.4(h).

¶24 The third client matter detailed in the OLR's complaint arose out of Attorney Kovac's representation of R.M. From April 2010 until January 2012, Attorney Kovac represented R.M. in a criminal matter. In December 2011, R.M. was convicted of felony murder and sentenced to life in prison.

¶25 Attorney Steven Zaleski represented R.M. in the appeal of the conviction. In September 2013, the court of appeals reversed and remanded the case to the circuit court. R.M. hired Attorney Kovac to represent him at the new trial. Attorney Kovac came into possession of transcripts obtained by Attorney Zaleski during the first appeal.

¶26 On remand, R.M. entered a plea and was sentenced to 25 years in prison in September of 2014. Attorney Zaleski represented R.M. during his second appeal. R.M. and his mother contacted Attorney Kovac in writing and by telephone to request the transcripts from the first appeal, but Attorney Kovac failed to respond.

¶27 R.M. filed a grievance against Attorney Kovac. In February 17, 2016 and April 12, 2016, the OLR sent letters to Attorney Kovac with notice of the grievance and requested a response. In an April 22, 2016 response, Attorney Kovac told the OLR he would forward the transcripts to R.M., but he failed to do so.

¶28 In letters to the OLR dated May 3, May 9, June 6, and June 30, 2016, R.M. informed the OLR he had not received the transcripts.

¶29 In a July 1, 2016 letter, the OLR requested that Attorney Kovac inform the OLR whether he had sent the transcripts to R.M. and the date on which he sent them....