                                                            2020 WI 58

                  SUPREME 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 58




                                                                 NOTICE
                                                   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


                                        2
                                                           No.    2018AP1872-D



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
                                       3
                                                         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.
                                     4
                                                              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.
                                        5
                                                           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


                                        6
                                                 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.

                                   7
                                                    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)."

                                  8
                                                                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).

                                        9
                                                          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,
                                    10
                                                        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.
                                   11
                                                                 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.


                                           12
                                                      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).




                                  13
    No.   2018AP1872-D




1
