                                                         2016 WI 62

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2015AP654-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:          July 8, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                      2016 WI 62
                                                              NOTICE
                                                This opinion is subject to further
                                                editing and modification.   The final
                                                version will appear in the bound
                                                volume of the official reports.
No.    2015AP654-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,
                                                               JUL 8, 2016
      v.
                                                                 Diane M. Fremgen
                                                              Clerk of Supreme Court
Peter J. Kovac,

           Respondent.




      ATTORNEY   disciplinary   proceeding.             Attorney's        license

suspended.



      ¶1   PER CURIAM.     We review referee James J. Winiarski's

recommendation    that   Attorney   Peter   J.     Kovac     be    declared       in

default and that his license to practice law in Wisconsin be

suspended for 90 days for professional misconduct.                  The referee

also recommended that Attorney Kovac pay the full costs of the
proceeding, which are $1,824.83 as of February 2, 2016.
                                                                       No.     2015AP654-D



    ¶2      We declare Attorney Kovac to be in default.                         We agree

with the referee that Attorney Kovac's professional misconduct

warrants a 90-day suspension of his license to practice law in

Wisconsin.          We also agree that Attorney Kovac should pay the

full costs of this proceeding.

    ¶3      Attorney           Kovac    was    admitted      to    practice        law   in

Wisconsin      in       1973   and   practices     in    Milwaukee.       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      appeal      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, 2008-

OLR-05.     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.

    ¶4      On April 2, 2015, the OLR filed a complaint against

Attorney Kovac alleging seven counts of misconduct with respect

to two client matters.               The first client matter detailed in the

OLR's    complaint         involved     Attorney        Kovac's    representation        of

K.R., who hired Attorney Kovac to defend him on felony criminal

charges pending in the United States District Court for the

Eastern District of Wisconsin.                     K.R. paid Attorney Kovac an
initial fee of $5,000 via credit card.                      Attorney Kovac did not
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enter into a written fee agreement with K.R.                         Attorney Kovac

discussed a $15,000 to $25,000 range as fees for K.R.'s felony

matter.    After the first day of trial, Attorney Kovac received

an   additional     $2,500       paid    from    K.R.'s     credit    card.        K.R.

subsequently rescinded the $2,500 payment.

      ¶5    K.R. was convicted and sentenced to a six-month term

of incarceration, supervised release, and restitution.                      Attorney

Jeffrey Jensen filed a motion to substitute as K.R.'s attorney,

which was granted.         After being appointed as successor counsel,

Attorney Jensen attempted on numerous occasions to obtain the

client file from Attorney Kovac, but Attorney Kovac failed to

respond.

      ¶6    Attorney Jensen filed a motion to compel, requesting

Attorney Kovac be ordered to turn over his client file.                            The

district court issued an order directing Attorney Kovac to turn

over the client file.             The order stated that failure to turn

over the file would cause the United States Marshal to arrest

Attorney Kovac and hold him in custody until he had turned over
the file.     Attorney Kovac delivered K.R.'s file to Attorney

Jensen's    office    prior       to    the     deadline    established       in   the

district court's order.

      ¶7    K.R. filed a grievance against Attorney Kovac.                         The

OLR notified Attorney Kovac of its investigation and requested

him to submit a written response to the grievance.                          Attorney

Kovac failed to respond.                It was not until after this court

issued an order to show cause as to why Attorney Kovac's law
license    should    not    be    suspended       that     he   responded     to   the
                                           3
                                                            No.    2015AP654-D



grievance.     The   OLR   withdrew    its   motion   for     a    temporary

suspension of Attorney Kovac's license.

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

misconduct with respect to Attorney Kovac's representation of

K.R.:

    [Count 1] By failing to have a written fee agreement
    when the total legal costs of the representation in
    connection with K.R.'s federal criminal matter were
    more than $1,000 and having received a $5,000 retainer
    from [K.R.], Kovac violated SCR 20.1.5(b)(1) and (2).1

    [Count   2]      By  failing   upon   termination  of
    representation, to promptly turn over his client file
    for representation of K.R. in the federal criminal
    matter to successor counsel, Kovac violated SCR
    20:1.16(d).2


    1
        SCR 20:1.5(b)(1) provides:

    The scope of the representation and the basis or rate
    of the fee and expenses for which the client will be
    responsible shall be communicated to the client in
    writing, except before or within a reasonable time
    after commencing the representation when the lawyer
    will charge a regularly represented client on the same
    basis or rate as in the past.     If it is reasonably
    foreseeable that the total cost of representation to
    the client, including attorney's fees, will be $1000
    or less, the communication may be oral or in writing.
    Any changes in the basis or rate of the fee or
    expenses shall also be communicated in writing to the
    client.

     SCR 20:1.5(b)(2) provides:       "If the total cost of
representation to the client, including attorney's fees, is more
than $1000, the purpose and effect of any retainer or advance
fee that is paid to the lawyer shall be communicated in
writing."
    2
        SCR 20:1.16(d) provides:

                                                                  (continued)
                                   4
                                                  No.   2015AP654-D


    [Count 3]      By failing to timely provide a written
    response to    OLR in the matter of the grievance of
    K.R., Kovac    violated SCR 22.03(2)3 and SCR 22.03(6)4
    enforced via   SCR 20:8.4(h).5



    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.
    3
        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
    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.
    4
       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."
    5
       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(6), or SCR
22.04(1)."


                                 5
                                                                     No.    2015AP654-D


      ¶9        The    second    client     matter     detailed      in    the    OLR's

complaint arose out of Attorney Kovac's representation of A.B.

in a Milwaukee County criminal matter.                      A.B. entered a guilty

plea to two drug-related charges, was found guilty, and was

sentenced.        Attorney Kovac did not file a notice of intent to

appeal.     A.B. filed a pro se motion to extend the time to file a

notice     of    intent    to    appeal,    seeking     post-conviction          relief.

A.B. contacted Attorney Kovac on numerous occasions trying to

obtain his client file so that successor counsel could perfect

post-conviction relief in the criminal matter.                       Attorney Kovac

failed to respond.          The court of appeals directed Attorney Kovac

to   respond      to    A.B.'s    motion,       but   Attorney     Kovac   failed    to

comply.

      ¶10       Attorney    Kevin    Gaertner         was    appointed      successor

counsel for A.B.           Attorney Gaertner repeatedly asked Attorney

Kovac to turn over the client file in the criminal matter, but

Attorney Kovac never delivered the file to Attorney Gaertner.

Attorney        Gaertner   finally    received        the   file    from   the    State

Public Defender's office.

      ¶11       A.B. filed a grievance against Attorney Kovac.                    As in

the K.R. matter, Attorney Kovac failed to respond to the OLR's

repeated requests for a response to the grievance and it was not

until after this court had issued an order to show cause why

Attorney Kovac's license should not be temporarily suspended for

                                            6
                                                              No.     2015AP654-D


his   failure   to   respond   to   the   OLR   that   he   finally    filed   a

response and the OLR withdrew its motion.

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

misconduct with respect to Attorney Kovac's handling of the A.B.

matter:

      [Count 4] By failing to file the notice of intent to
      pursue post conviction relief in the A.B. matter,
      [Attorney] Kovac violated SCR 20:1.3.6

      [Count   5]      By   failing,   upon   termination   of
      representation, to respond to phone calls and letters
      from A.B. relating to requests to return his file so
      that   he   could    pursue    post-conviction   relief,
      [Attorney] Kovac violated SCR 20:1.16(d).

      [Count 6]   By failing to respond to multiple Orders
      from the Court of Appeals requesting that Attorney
      Kovac provide a response concerning whether he had
      counseled A.B. regarding the decision to seek post-
      conviction relief, [Attorney] Kovac violated SCR
      20:3.4(c).7

      [Count 7]    By failing to provide a timely initial
      response to A.B.'s grievance and by failing to timely
      respond to OLR's request for a supplemental response
      to A.B.'s grievance, [Attorney] Kovac violated SCR
      22.03(2) and SCR 22.03(6), enforced via 20:8.4(h).

      ¶13   The referee was appointed on July 14, 2015.                   After

Attorney Kovac failed to file an answer to the complaint, the

OLR filed a notice of motion and motion for default judgment.


      6
       SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
      7
       SCR 20:3.4(c) provides:  "A lawyer shall not: . . . .
knowingly disobey an obligation under the rules of a tribunal,
except for an open refusal based on an assertion that no valid
obligation exists."


                                      7
                                                                     No.     2015AP654-D


The   referee    advised    the    parties      that    a    telephone      scheduling

conference would be held on August 12, 2015.                         On August 11,

2015, at approximately 4:40 p.m., Attorney Kovac left a voice

message with the referee's office asking for an adjournment of

the telephonic scheduling conference.                    The referee issued an

order   adjourning        the     telephonic         scheduling      conference        to

September 15, 2015.        The referee also ordered Attorney Kovac to

file his answer to the complaint on or before September 11,

2015.   The referee advised Attorney Kovac that the OLR had filed

a motion for default judgment and that the referee would not

further extend the time to file an answer.

      ¶14   Attorney      Kovac    failed       to    file    an    answer     by     the

September   11,    2015    extended     deadline.            He    also     failed    to

participate in the telephonic scheduling conference on September

15, 2015, at which time the OLR orally renewed its motion for

default judgment.         On October 1, 2015, the referee issued an

order declaring Attorney Kovac to be in default.

      ¶15   On   October    8,     2015,       the   referee       issued    an     order

granting the parties the opportunity to file written argument

with respect to the appropriate discipline.                        The referee gave

Attorney Kovac until November 20, 2015 to file a response to the

OLR's written argument and authorities.                     Attorney Kovac failed

to file a response by November 20, 2015.                    On November 23, 2015,

Attorney Kovac sent the referee a letter in which he claimed

                                           8
                                                                     No.    2015AP654-D


that he had tried to drop off a response at the referee's office

on November 20.          The November 23 letter included a copy of the

response in which Attorney Kovac referenced various mitigating

circumstances.

       ¶16    In response to Attorney Kovac's letter, the referee

sent a letter to both parties indicating that if Attorney Kovac

wanted   to    have   a    hearing      on   the   appropriate      discipline       and

mitigating circumstances, he was to discuss available dates and

times with the OLR.              The referee also advised Attorney Kovac

that    the   referee      would    not      reopen   the    case    and    that     the

declaration of default would remain in place.                        Attorney Kovac

was    advised    that     the   referee      considered     time    to    be   of   the

essence and that the referee would not grant any additional time

to Attorney Kovac to arrange a hearing.                     Attorney Kovac failed

to take any action, did not contact the OLR to arrange a date

and time for the suggested hearing, and never filed an answer or

otherwise responded to the OLR's complaint.

       ¶17    The referee issued his report and recommendation in

the matter on January 19, 2016. The referee found that the OLR

had met its burden of proof with respect to all seven counts of

misconduct       alleged    in    the   complaint.          With    respect     to   the

appropriate level of discipline, the referee pointed to Attorney

Kovac's two prior public reprimands and commented that there

appears to be a pattern of misconduct whereby Attorney Kovac

                                             9
                                                                    No.   2015AP654-D


fails to properly represent his clients and there is also a

disturbing pattern of Attorney Kovac failing to cooperate in OLR

investigations.      The        referee        opined    that   Attorney    Kovac's

continuing misconduct shows disrespect for supreme court rules

and   his   obligations    as    a   practicing         attorney.     The   referee

explained:

      The respondent's misconduct is serious in nature. He
      intentionally neglects clients.      He intentionally
      fails to cooperate with successor counsel.         He
      intentionally    fails    to   cooperate   with   OLR
      investigations.   He ignores orders issued by courts,
      including appellate courts.

      By my count, respondent has now failed to cooperate
      with at least six OLR investigations of misconduct.
      His failure to cooperate is not an oversight or a
      mistake,   but   rather an  intentional   course  of
      misconduct in defiance of his obligations as a
      Wisconsin lawyer. Also, he has now failed to file an
      answer in two disciplinary cases involving three
      separate grievances.

      When I review respondent's behavior in the past two
      public reprimands with his conduct in this case, I
      note another troublesome pattern.   Respondent, during
      his representation of clients and in his handling of
      grievances, takes a course of delay, excuses, and
      misrepresentations.    Repeated promises to clients,
      courts, OLR, and referees are simply never complied
      with. Instead, they are replaced with new promises to
      clients, courts, OLR, and referees.

      In the present case, respondent was given multiple
      chances to file an answer.       Rather than file an
      answer, he would appear at my office after deadlines
      had passed and essentially ask for more time. When he
      would be given additional time, he would again fail to
      respond. In the present case, he filed a late letter
      indicating he wanted to be heard on mitigating
      circumstances, but never follows through with any
      efforts to secure a hearing that was offered to him on
      the subject of mitigating circumstances.
                                          10
                                                                        No.   2015AP654-D


    The      pattern    of      non-cooperation,     delay,
    misrepresentation in representing clients and in
    responding to grievances is now most apparent.
    Further complicating the situation is the fact that
    respondent, in defaulting in the last two disciplinary
    cases, has not provided any explanations for his
    conduct.   I fear that such conduct will continue and
    will cause harm in the future to respondent's clients.

    ¶18     The referee commented that two prior public reprimands

failed to change Attorney Kovac's behavior, and the referee said

a higher level of discipline was needed to protect the public,

the courts, and the legal system from a repetition of Attorney

Kovac's misconduct.          Accordingly, the referee recommended that

Attorney    Kovac's       license    to    practice         law    in    Wisconsin    be

suspended   for     90    days.      The    referee         also   recommended       that

Attorney    Kovac    be    ordered    to        pay   the    entire      cost   of   the

disciplinary proceeding.

    ¶19     Supreme court rule 22.17 provides that an appeal from

a referee's report must be filed within 20 days after the filing

of the report.      Since the referee's report was filed on January

19, 2016, Attorney Kovac's appeal needed to be filed by February

8, 2016 in order to be timely.                  Attorney Kovac did not file a

timely appeal.      Instead, on February 12, 2016, he filed a letter

asking for additional time to file a formal response to the

referee's report.         This court construed the letter as a motion

to extend the time to file an appeal.                   By order dated March 7,

2016, this court denied the motion.


                                           11
                                                                              No.    2015AP654-D


      ¶20   Although Attorney Kovac was given the opportunity to

file an answer and present a defense to the OLR's complaint, he

failed to do so.         Accordingly, we declare him to be in default.

      ¶21   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.                                        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.

      ¶22      We     also    agree      with       the     referee          that    a   90-day

suspension       of    Attorney        Kovac's      license       to    practice         law   in

Wisconsin is an appropriate sanction for his misconduct.                                       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.                                 As we have

oft     noted,      Wisconsin      follows          the     concept          of     progressive

discipline.         See In re Disciplinary Proceedings Against Brandt,

                                               12
                                                                         No.   2015AP654-D


2012 WI 8, ¶21, 338 Wis. 2d 524, 808 N.W.2d 687.                         We agree with

the referee that a 90-day suspension is necessary to protect the

public, the courts, and the legal system from repetition of

Attorney     Kovac's    misconduct;          impress       upon   the     attorney     the

seriousness of his misconduct; and deter other attorneys from

committing similar misconduct.

      ¶23    In    addition,     we    find      that     a   90-day     suspension     is

generally consistent with the sanction imposed in other somewhat

similar cases.         Although no two disciplinary proceedings are

identical, we find this fact situation generally analogous to In

re   Disciplinary      Proceedings          Against       Wood,   2014    WI    116,   358

Wis. 2d 472, 854 N.W.2d 844.                 In Wood, an attorney received a

90-day suspension for seven counts of misconduct that included

failing     to    provide   a    client      with     a    written      fee    agreement,

failing to respond to a client's requests for information, and

failing     to    respond       to    the     OLR's       investigation        into    his

misconduct.

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

should bear the full costs of this proceeding.

      ¶25    IT IS ORDERED that the license of Peter J. Kovac to

practice law in Wisconsin is suspended for a period of 90 days,

effective August 12, 2016.




                                            13
                                                        No.   2015AP654-D


    ¶26     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 $1,824.83.

    ¶27     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.

    ¶28     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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    No.   2015AP654-D




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