Office of Lawyer Regulation v. Kostich

2010 WI 136, 793 N.W.2d 494, 330 Wis. 2d 378, 2010 Wisc. LEXIS 586
CourtWisconsin Supreme Court
DecidedDecember 21, 2010
DocketNo. 2009AP287-D
StatusPublished
Cited by6 cases

This text of 2010 WI 136 (Office of Lawyer Regulation v. Kostich) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Office of Lawyer Regulation v. Kostich, 2010 WI 136, 793 N.W.2d 494, 330 Wis. 2d 378, 2010 Wisc. LEXIS 586 (Wis. 2010).

Opinions

PER CURIAM.

¶ 1. We review the findings of fact, conclusions of law, and recommendations of Referee Christine Harris Taylor concluding that Attorney Ni-kola E Kostich engaged in unprofessional conduct in violation of the rules of professional conduct. The referee recommended a public reprimand and imposition of costs, which total $9,760.46 as of March 10, 2010. No appeal has been filed in this matter. See SCR 22.17(2).1

¶ 2. We approve the referee's findings and conclusions. We consider a public reprimand barely adequate for the egregious conflict of interest and therefore also impose the additional conditions as set forth herein. We also order Attorney Kostich to pay the costs of this proceeding.

¶ 3. Nikola E Kostich was admitted to the practice of law in Wisconsin in 1970. Attorney Kostich, who practices in Milwaukee, has previously received two court-ordered public reprimands. In 1986 he was reprimanded on the basis of a criminal conviction for failure to file a tax return. See In re Disciplinary Proceedings Against Kostich, 132 Wis. 2d 227, 391 N.W.2d 208 (1986). In 2005 Attorney Kostich was reprimanded for [381]*381violations of SCR 20:1.3 (failing to determine if a client had grounds for an appeal for over 30 months after he was retained to do so), SCR 20:1.4(a) (failing to respond to the client's letters and telephone calls), SCR 20:1.4(b) (failing to inform the client that he had no legal grounds for an appeal), SCR 20:1.16(d) (failing to refund an advance payment of fees upon termination), another violation of SCR 20:1.16(d) (failing to provide a client's file), and SCR 22.03(6) (failing to cooperate with OLR's investigation regarding two matters). See In re Disciplinary Proceedings Against Kostich, 2005 WI 90, 282 Wis. 2d 206, 700 N.W.2d 763.

¶ 4. On February 4, 2009, the Office of Lawyer Regulation (OLR) filed a complaint against Attorney Kostich alleging one count of professional misconduct related to Attorney Kostich's decision to handle a criminal case in which he had a conflict of interest. The referee conducted an evidentiary hearing on December 15, 2009, and filed her report on February 11, 2010. No appeal was pursued.

¶ 5. The facts giving rise to this disciplinary matter are as follows. In 1965, when G.K. was 13 years old and in eighth grade at St. Patrick's School in Milwaukee, Wisconsin, he was repeatedly sexually molested by Sister Norma Giannini ("Giannini"), a Catholic nun who was his teacher, the principal of the school, and a friend of the family.

¶ 6. In late 1996 or early 1997 G.K. met with Attorney Kostich to explore the possibility of bringing a civil action against Giannini. G.K. shared highly confidential information with Attorney Kostich including specific information regarding the sexual assaults. Attorney Kostich explained that there might be a statute of limitations issue and stated he would research that issue and get back to G.K. The parties discussed attor[382]*382ney fees but no retainer agreement was signed. G.K. also authorized Attorney Kostich to obtain medical records from G.K's therapist. After the initial meeting Attorney Kostich sought additional details about the abuse and obtained G.K's therapy records. In August 1997, after a second meeting with G.K., Attorney Kostich advised G.K. that he would not take the case because he believed the statute of limitations precluded a civil suit.

¶ 7. In 2006, after learning that Giannini's departure from the state of Wisconsin in 1969-1970 meant a criminal charge might still be viable, G.K. contacted the police regarding the sexual assaults. In December 2006 Giannini was charged with two counts of indecent behavior with a child, a Class C felony, in Wisconsin. State v. Norma Giannini, Milwaukee County Case No. 06CF443. The criminal charges concerned the sexual assaults upon G.K. and one other student at St. Patrick's School.

¶ 8. On January 9, 2007, Attorney Kostich appeared as attorney of record on behalf of Giannini along with another attorney from Chicago. Giannini entered a not guilty plea and the matter was scheduled for trial.

¶ 9. When G.K. learned that Attorney Kostich was representing Giannini, he contacted Attorney Kostich and objected to the representation on the basis of what he believed to be Attorney Kostich's prior representation of him on the same matter. Attorney Kostich denied that he had any conflict of interest in representing Giannini and refused to terminate his representation of Giannini.

¶ 10. G.K. filed a grievance against Attorney Kostich with the OLR. Attorney Kostich responded to the grievance in a letter dated March 9, 2007, denying that he had ever represented G.K. or that there was any [383]*383conflict. He continued to represent Giannini. Giannini subsequently entered no contest pleas to both charges.

¶ 11. The referee made a number of factual findings, ultimately finding that Attorney Kostich did represent G.K. and concluding there was a clear conflict of interest with respect to Attorney Kostich's representation of Giannini. These findings included the fact that Attorney Kostich knew that G.K. —identified as a victim by Giannini and in the criminal complaint — was the same individual Attorney Kostich met with to discuss a possible civil case against Giannini. Attorney Kostich had received G.K.'s therapy records both when initially investigating the matter and then later as part of the discovery materials obtained from the district attorney in the Giannini criminal matter. The police reports detailing the Giannini abuse investigation also indicated that G.K. referred to Attorney Kostich as his attorney.

¶ 12. Attorney Kostich testified that he reviewed the supreme court rules regarding conflicts of interest and determined there was no conflict. He did not consider it necessary to obtain written permission from G.K. to represent Giannini. The referee observed that Attorney Kostich believed he met with G.K. out of professional courtesy and that was it. He did, however, acknowledge that he considered retaining another attorney if it became necessary to cross-examine G.K. in the Giannini criminal proceeding.

¶ 13. A referee's findings of fact will be affirmed unless clearly erroneous. Conclusions of law are reviewed de novo. See In re Disciplinary Proceedings Against Kalal, 2002 WI 45, ¶ 23, 252 Wis. 2d 261, 643 N.W.2d 466.

[384]*384¶ 14. The requirements of SCR 20:1.9 pertain to situations involving a conflict of interest with a former client. SCR 20:1.9(a) provides:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in a writing signed by the client.

¶ 15. Attorney Kostich contended that he did not represent G.K. Attorney Kostich noted that no retainer agreement was signed, no authorizations were signed at his office, no file was created on behalf of G.K., and no notes were taken during the initial meeting with G.K.

¶ 16. Whether an attorney-client relationship is created depends upon the intent of the parties and is a question of fact. See, e.g., Marten Transport, Ltd. v. Hartford Specialty Co., 194 Wis.

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Cite This Page — Counsel Stack

Bluebook (online)
2010 WI 136, 793 N.W.2d 494, 330 Wis. 2d 378, 2010 Wisc. LEXIS 586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/office-of-lawyer-regulation-v-kostich-wis-2010.