                                                            2020 WI 47

                  SUPREME COURT         OF   WISCONSIN
CASE NO.:              2016AP2522-D


COMPLETE TITLE:        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.

                            DISCIPLINARY PROCEEDINGS AGAINST KOVAC

OPINION FILED:         May 27, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
Per Curiam
NOT PARTICIPATING:
REBECCA FRANK DALLET, J.

ATTORNEYS:

      For the respondent-appellant, there was a brief filed by Peter
J. Kovac, Milwaukee, WI.


      For the complainant-respondent, there was a brief filed by
John T. Payette and The Office of Lawyer Regulation, Madison, WI.
                                                                      2020 WI 47
                                                             NOTICE
                                               This opinion is subject to further
                                               editing and modification.   The final
                                               version will appear in the bound
                                               volume of the official reports.
No.    2016AP2522-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-Respondent,                          MAY 27, 2020
      v.                                                          Sheila T. Reiff
                                                              Clerk of Supreme Court
Peter J. Kovac,

             Respondent-Appellant.




      ATTORNEY    disciplinary   proceeding.          Attorney's         license

suspended.


      ¶1   PER   CURIAM.   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.
                                                           No.    2016AP2522-D



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
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                                                           No.    2016AP2522-D



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


                                    3
                                                           No.   2016AP2522-D



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.


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                                                   No.   2016AP2522-D



     ¶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,




     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.

                                    5
                                                    No.   2016AP2522-D


     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.


     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.   2016AP2522-D



     ¶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

     5 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."

                                  7
                                                          No.    2016AP2522-D



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.            Attorney Kovac failed to
                                     8
                                                             No.    2016AP2522-D



respond.    To date, Attorney Kovac has failed to provide the

transcripts to R.M.

     ¶30   The    OLR's    complaint   alleged   the    following    count   of

misconduct with respect to Attorney Kovac's handling of the R.M.

matter:

     Count 5: Upon termination of representation, in failing
     to deliver the trial transcripts to R.M., Attorney Kovac
     violated SCR 20:1.16(d).
     ¶31   The final two counts detailed in the OLR's complaint
involved   Attorney        Kovac's     failure   to     cooperate     in     the

investigation of a grievance filed by V.Y.             V.Y. had signed a fee

agreement in December 2014 whereby Attorney Kovac was to represent

him in three criminal matters.

     ¶32   V.Y.    filed    a   grievance    against    Attorney     Kovac   in

February of 2015.         In May 20 and July 1, 2015 letters, the OLR

provided Attorney Kovac with notice of the investigation and

requested a response.       Attorney Kovac failed to respond.

     ¶33   On July 30, 2015, the OLR filed a notice of motion and

motion requesting an order to show cause as to why Attorney Kovac's

license should be not suspended for willful failure to cooperate
with the OLR's investigation of the V.Y. grievance.                 This court

issued an order to show cause.             In August 2015, Attorney Kovac

submitted an initial response, and the OLR withdrew its motion.

     ¶34   In a February 3, 2016 letter, the OLR requested Attorney

Kovac to advise when he had turned over V.Y.'s files to successor

counsel.   Attorney Kovac failed to respond.




                                       9
                                                    No.   2016AP2522-D



     ¶35   In March 2016, the OLR filed a second notice of motion

and motion requesting an order to show cause as to why Attorney

Kovac's license should not be suspended for his willful failure to

cooperate with investigation of the grievance.    This court issued

an order to show cause.     In April 2016, Attorney Kovac submitted

a supplemental written response and the OLR withdrew its motion.

     ¶36   The OLR's complaint alleged the following counts of

misconduct with respect to Attorney Kovac's failure to respond to

V.Y.'s grievance:

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

     Count 7: By failing to provide a timely written response
     to the OLR's February 3, 2016 request for additional
     information relating to the investigation, Attorney
     Kovac violated SCR 22.03(6), enforceable via SCR
     20:8.4(h).
     ¶37   A referee was appointed on February 1, 2017.       The OLR

filed a timely motion for substitution of the referee, which was

granted.   Referee Esenberg was appointed on April 3, 2017.    By the

time Referee Esenberg was appointed, the OLR had filed a motion
for default judgment because Attorney Kovac had failed to file an

answer to the complaint.    Referee Esenberg issued an order giving

Attorney Kovac until May 26, 2017 to file an answer.        Attorney

Kovac did file an answer on May 24, 2017.      The answer admitted

most of the allegations in the complaint and offered various

mitigating circumstances.




                                 10
                                                            No.   2016AP2522-D



      ¶38    In August 2017, the OLR moved for judgment on the

pleadings or, in the alternative, for summary judgment.               Referee

Esenberg established a briefing schedule which required Attorney

Kovac to file a response by September 18, 2017.             He failed to do

so.

      ¶39    On November 14, 2017, Referee Esenberg issued an interim

report finding that the OLR had met its burden of proof with

respect to all of the counts in the complaint with the exception

of Count 3.

      ¶40    In June 2018, the referee entered an order setting a

scheduling conference.       The referee advised Attorney Kovac that if

his health precluded his participating in the proceeding, a proper

avenue for relief might be SCR 22.16(4).6              At a July 5, 2018

scheduling conference, Attorney Kovac agreed he would provide a

statement by July 16, 2018 on whether he continued to dispute the

allegations     of   Count   3.   He   also   agreed   to   provide   written

statements from any witnesses he intended to call with respect to

mitigation or sanctions by September 4, 2018.                Attorney Kovac
failed to comply with that order.



      6   SCR 22.16(4) provides:

           (a) If in the course of the proceeding the
      respondent claims to have a medical incapacity that
      makes the defense of the proceeding impossible, the
      referee shall conduct a hearing and make findings
      concerning whether a medical incapacity makes defense of
      the proceeding impossible. The referee may order the
      examination of the respondent by qualified medical or
      psychological experts.

                                       11
                                                   No.   2016AP2522-D



     ¶41   In October 2018, the OLR filed a notice of motion and

motion for default judgment as to Count 3.    The referee directed

Attorney Kovac to respond no later than October 22, 2018 and again

asked if he intended to contest Count 3 on the merits.

     ¶42   On October 23, 2018, Attorney Kovac hand delivered a

letter to the referee apologizing for failing to comply with the

scheduling order and admitting that his failure to do so had been

disrespectful and frustrated the process.    Attorney Kovac stated

he did not wish to bear the expense of an evidentiary hearing and

hoped that the referee's consideration of Count 3 would be limited

to the complaint and statements of "V.Y.'s successor counsel."

Attorney Kovac apparently was confused with respect to which client

was the subject of Count 3.

     ¶43   On November 7, 2018, Referee Esenberg issued a second

interim report. In the report the referee said that Attorney Kovac

failed to clearly indicate whether he intended to contest Count 3,

so Count 3 would be addressed at an evidentiary hearing.         The

hearing was held on November 12, 2018.      The referee issued his
final report on July 23, 2019.    In that report the referee found

that Attorney Kovac did commit the misconduct alleged in Count 3

of the OLR's complaint.

     ¶44   As to the appropriate discipline for the seven counts of

misconduct, the referee concluded that the five-month suspension

requested by the OLR was appropriate.       The referee said that

Attorney Kovac's conduct showed either a disregard for, or an

inability to comply with, his obligations to his clients.        The
referee said Attorney Kovac was "astonishingly cavalier" about his
                                 12
                                                          No.     2016AP2522-D



obligations to cooperate with the OLR; he was dilatory in pursing

post-conviction relief on behalf of M.M. and E.B.; and he did not

cooperate with successor counsel in the R.M. case.

       ¶45   The referee noted that this is Attorney Kovac's fourth

disciplinary matter; all have come in the last ten years; and the

prior matters involved allegations of inattention, neglect, and

failure to cooperate with the OLR.

       ¶46   The referee said Attorney Kovac concedes that he has a

problem with organization and procrastination but believes that he

should not be sanctioned but rather should be helped.                 Attorney

Kovac says someone should be "provided" to help him out.                     The

referee said:

       I have no doubt that there are many brilliant and capable
       attorneys who need someone to keep them on track. But
       it is not the obligation of this Court, OLR or the public
       to provide that assistance. If Attorney Kovac needed
       help with organization, it was his obligation to get it.
       ¶47   The referee also noted that Attorney Kovac pointed to

various health issues, most notably a serious problem with diabetes

that has significantly improved.          The referee said again that an

attorney whose health is impaired has an obligation to seek

whatever assistance is required or to limit his or her activities

so as to protect the public.

       ¶48   In recommending a five-month suspension, the referee

said    he   was   mindful   that   Attorney   Kovac   will     not   need    a

reinstatement hearing to regain his license and this will give him

a chance to return to practice without undue delay while still
retaining a measure of progressive discipline.


                                     13
                                                         No.     2016AP2522-D



     ¶49   Attorney Kovac has appealed.        Although his brief does

not identify any specific issues, he asserts that a five-month

suspension is an unduly harsh sanction.       He points out that he has

never been accused of misappropriating funds, dishonesty, trust

account violations, or criminal or immoral conduct.            He says most

of the complaints against him have been for being dilatory in post-

conviction matters and not timely cooperating with the OLR.                He

argues that while his clients may have had their appeals delayed,

their appellate rights "were eventually honored."

     ¶50   Attorney Kovac says that his multiple health issues

contributed to his dilatory conduct.          He says he has now made

substantial changes in his lifestyle and has overcome many of his

health   problems.   He   says   he   does   not   dispute     that   he   has

rightfully been found to have violated Supreme Court Rules, nor

does he claim the rules he did violate are inconsequential.                He

says he recognizes that he has a serious procrastination problem,

and he hopes that this court will require that, in order for him

to keep his law license, he be required to have the assistance of
a lawyer monitor to ensure that he keeps current on all time

deadlines for his legal work.

     ¶51   Attorney Kovac says the OLR uncompromisingly takes the

position that sanctions must be increased with each new complaint

it files against a lawyer.   He says that rationale should not apply

in cases such as this one where the alleged misconduct occurred

before the previous sanction was imposed because in such situations

the lawyer will not have had the necessary prior notice.              He says
in this case the misconduct involving clients occurred before his
                                  14
                                                        No.    2016AP2522-D



90-day suspension was imposed in 2016. He does say, "this argument

is admittedly weakened by the fact that some of the dilatory

conduct during the investigation by the Office of Lawyer Regulation

did occur after the effective date of the previous sanction."

Attorney Kovac does not suggest the sanction he believes would be

appropriate.

     ¶52   The OLR asserts that the referee's recommended five-

month suspension is the appropriate sanction for Attorney Kovac's

seven counts of misconduct.     It notes that Attorney Kovac does not

dispute that he committed the misconduct alleged in the OLR's

complaint.     The OLR says alleged health concerns do not mitigate

the misconduct or weigh in favor of a lesser sanction.              The OLR

points out that, as the referee observed, despite claiming that

his health concerns had resolved, Attorney Kovac continued his

pattern of dilatory behavior in his defense of this disciplinary

proceeding and that continued conduct undermined any argument that

improved health had put him on the straight and narrow path.

     ¶53   The OLR goes on to say that there is no evidence that
Attorney   Kovac's   purposed   health   concerns   caused    any   of   the

misconduct.    It notes the only evidence regarding health concerns

comes from Attorney Kovac's own self-serving discussion of his

alleged condition.     It notes this court has expressly held that a

party's own say-so is not enough to support mitigation of the

sanction in attorney disciplinary cases.       See In re Disciplinary

Proceedings Against Alfredson, 2019 WI 17, ¶32, 385 Wis. 2d 565,

923 N.W.2d 869.      The OLR says since Attorney Kovac presented no
reliable independent evidence to support a causal link between his
                                   15
                                                        No.     2016AP2522-D



health concerns and his misconduct, his alleged medical condition

would not mitigate the sanction in this case even if his recent

conduct showed improved diligence and cooperation, which it does

not.

       ¶54   The OLR says the referee properly invoked this court's

longstanding practice of progressive discipline when recommending

a   five-month    suspension.    The   OLR   notes   that     the   referee

acknowledged Attorney Kovac's argument that his misconduct in this

case pre-dated the 2016 suspension, but the referee correctly

observed that Attorney Kovac's argument would have more force were

it not for the ongoing failure to cooperate with the OLR and his

lack of diligence in this case.

       ¶55   The OLR says the misconduct at issue here is serious and

extensive.     It says because prior public reprimands and a shorter

license suspension have failed to impress upon Attorney Kovac the

seriousness of his misconduct, a longer suspension is necessary to

protect the public, the courts, and the legal system from his

continued repetition of that misconduct.
       ¶56   A referee's findings of fact are affirmed unless clearly

erroneous.     Conclusions of law are reviewed de novo.         See In re

Disciplinary Proceedings Against Eisenberg, 2004 WI 14, ¶5, 269

Wis. 2d 43, 675 N.W.2d 747. The court may impose whatever sanction

it sees fit, regardless of the referee's recommendation.            See In

re Disciplinary Proceedings Against Widule, 2003 WI 34, ¶44, 261

Wis. 2d 45, 660 N.W.2d 686.     Upon careful review of the matter, we

adopt the referee's findings of fact and agree with the referee's


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                                                           No.     2016AP2522-D



conclusions of law that Attorney Kovac violated the Supreme Court

Rules referenced above.

       ¶57   We   also   agree   with   the   referee   that   a   five-month

suspension of Attorney Kovac's license to practice law in Wisconsin

is an appropriate sanction for his misconduct.             Even though the

neglect of the various client matters occurred prior to Attorney

Kovac's 90-day suspension in 2016, as the referee and the OLR both

note, Attorney Kovac continued to display a lack of diligence and

lack of cooperation while the OLR was attempting to investigate

the various grievances that had been filed against him.                     In

imposing the 90-day suspension in 2016, we stated:

       We share the referee's concern that, in spite of
       receiving two prior public reprimands for, among other
       things, failing to diligently represent and communicate
       with criminal clients and failing to cooperate with the
       OLR's investigation into pending grievances, Attorney
       Kovac has continued to engage in the same type of
       behavior that led to the public reprimands.
In re Disciplinary Proceedings Against Kovac, 370 Wis. 2d 388,

¶22.    Just as the two public reprimands failed to change Attorney

Kovac's habit of procrastination and dilatory practices, the 90-

day suspension also apparently failed to have its intended effect.

We agree with the referee that a more severe sanction is warranted

this time around.

       ¶58   Although no two disciplinary proceedings are precisely

the same, we find that this fact situation is somewhat analogous

to In re Disciplinary Proceedings Against Berlin, 2008 WI 4, 306

Wis. 2d 288, 743 N.W.2d 683.             In that case the attorney was
suspended for six months for eight counts of misconduct relating


                                        17
                                                                  No.   2016AP2522-D



to   two    client      matters.     The    misconduct       included   failure    to

cooperate with the OLR, failure to act with reasonable diligence,

failure     to    adequately   communicate      with     a    client,   and   making

misrepresentations to the OLR.             In addition, Attorney Berlin made

misrepresentations to a probate court. Attorney Berlin had a prior

public reprimand.          In this case, Attorney Kovac's misconduct did

not include dishonesty.             Thus, a slightly lesser sanction than

that imposed on Attorney Berlin is appropriate.

      ¶59    Finally, we agree with the referee that Attorney Kovac

should pay the full costs of this proceeding.

      ¶60    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.

      ¶61    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 $7,401.87 as of

December 11, 2019.

      ¶62    IT IS FURTHER ORDERED that Peter J. Kovac shall comply
with the provisions of SCR 22.26 concerning the duties of an

attorney whose license to practice law has been suspended.

      ¶63    IT    IS     FURTHER    ORDERED    that     compliance      with     all

conditions of this order is required for reinstatement.                           See

SCR 22.28(2).




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    ¶64   REBECCA   FRANK   DALLET,   J.   (dissenting).      While   I

recognize that this court normally adheres to the concept of

progressive discipline, based upon the nature and timing of the

misconduct in this case, I would depart from that practice here

and impose a 90-day suspension.

    ¶65   Accordingly, I respectfully dissent.




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