Vol. 84, No. 4, April 2011
Disciplinary proceeding against Nikola P. Kostich
In a Dec. 21, 2010 decision, the Wisconsin Supreme Court publicly reprimanded Nikola P. Kostich, Milwaukee. Disciplinary Proceedings Against Kostich, 2010 WI 136. The court further ordered Kostich to pay the costs of the action.
In late 1996 or early 1997, a man met with Kostich to explore the possibility of bringing a civil action against a nun, a former staff member of a parochial school, who allegedly had repeatedly sexually molested the man in 1965, when he was a 13-year-old eighth grader at the school. The parties discussed fees, but no fee agreement was ever signed. The man authorized Kostich to obtain medical records from the man’s therapist. Kostich explained that there might be a statute of limitation issue, and stated that he would research that issue and get back to the man. After the initial meeting, Kostich sought further details from the man and obtained his medical records. In August 1997, after a second meeting with the man, Kostich advised the man that he would not take the case because he believed the statute of limitation precluded a civil suit.
In 2006, after learning that the nun’s departure from Wisconsin in 1969-70 meant a criminal charge might still be viable, the man contacted police regarding the sexual assaults. In December 2006, the nun was charged with two felony counts of indecent behavior with a child in Milwaukee County Circuit Court. The criminal charges stemmed from the sexual assaults of the man and another victim who also had been a student at the school where the nun worked.
On Jan. 9, 2007, Kostich and another attorney appeared in the criminal case on behalf of the nun, who entered a not-guilty plea. The case was scheduled for trial. The man contacted Kostich and objected to Kostich’s representation of the nun, believing that Kostich’s prior consultation with him gave rise to a conflict of interest. Kostich denied the presence of a conflict of interest, and he continued to represent the nun, who subsequently entered no-contest pleas to the charges against her.
Kostich knew that the man, identified as a victim by the nun and in the criminal complaint, was the same person who consulted with Kostich years earlier concerning a potential civil claim. Kostich had received the man’s therapy records, both when investigating the potential civil claim and then later as part of the discovery materials obtained from the prosecution in the criminal matter. Further, the police reports detailing the criminal investigation also indicated that the man referred to Kostich as his attorney.
The Wisconsin Supreme Court determined that at the time of Kostich’s representation of the nun in the criminal matter, the man had the status of a former client. The court further determined that Kostich’s former attorney-client relationship with the man and his subsequent representation of the alleged perpetrator of sexual abuse against the man “were both adverse and substantially related.” The court concluded that Kostich engaged in a conflict of interest with respect to a former client, in violation of former SCR 20:1.9(a) (effective before July 1, 2007) and current SCR 20:1.9(a).
In addition to imposing the public reprimand and costs, the court ordered Kostich to complete 10 ethics-approved continuing legal education credits within 12 months of the disciplinary order.
Kostich has two prior court-ordered public reprimands, one imposed in 1986 and the other in 2005. Neither involved a conflict-of-interest charge.
Chief Justice Abrahamson, joined by Justice Bradley, dissented, stating that she would issue an order to show cause giving both the Office of Lawyer Regulation (OLR) and Kostich the opportunity to explain why a 60-day license suspension was not a more appropriate level of discipline.
Public reprimand of R. Christopher Sharp
The OLR and R. Christopher Sharp, Racine, agreed to the imposition of a public reprimand, pursuant to SCR 22.09(1). A supreme court-appointed referee thereafter approved the agreement and issued a public reprimand on Sept. 30, 2010, in accordance with SCR 22.09(3).
Sharp represented the petitioner in a divorce action filed in circuit court in January 2003. The divorce judgment was filed on July 6, 2004. Sharp further represented the client in an appeal of a June 20, 2008, postjudgment order of the circuit court in the divorce case. The notice of appeal was filed in the circuit court on Sept. 18, 2008. The notice of appeal was filed in the court of appeals on Sept. 22, 2008.
On Oct. 23, 2008, the court of appeals ordered that a statement on transcript was to be filed no later than Oct. 31, 2008, and that a failure to do so would result in a penalty of $25 per day against Sharp, retroactive to the order date. Under the terms of the order, the penalty was to accrue until the statement on transcript was filed, was to be paid regardless of the status of the appeal, and was not to be charged to the client.
Sharp did not file the statement on transcript by Oct. 31, 2008.
On Nov. 18, 2008, the court of appeals issued an order fining Sharp $675, payable to the clerk of the court of appeals no later than Nov. 26, 2008. The order prohibited Sharp from billing his client for the fine. The court further ordered that Sharp’s appellate brief, due Dec. 3, 2008, would not be accepted for filing until the fine was paid.
Sharp did not comply with the terms of the court of appeals’ Nov. 18, 2008, order nor did he otherwise respond to the court.
In an order issued Dec. 16, 2008, the court of appeals addressed Sharp’s delinquent prosecution of the appeal and 1) imposed a sanction of $1,150 due to the clerk of the court of appeals by no later than Jan. 7, 2009, and not chargeable to any client; 2) barred Sharp from practicing before the court of appeals until further order of the court; and 3) provided a copy of the order to the OLR. In addition, the court of appeals ordered Sharp to appear before the presiding judge on Jan. 12, 2009, to answer for his failure to comply with the court’s orders.
Sharp did not appear on Jan. 12, 2009, nor did he pay the outstanding sanction imposed on him.
In an order dated Jan. 14, 2009, the court of appeals noted Sharp’s nonappearance on Jan. 12, 2009, ordered him to pay costs associated with the court reporter’s Jan. 12, 2009, appearance, and indicated that the sanction against Sharp for ignoring court orders remained at $1,150. In addition, the court indicated that Sharp remained barred from practicing before the court and requested that Sharp’s client advise the clerk of the court of appeals in writing whether he desired to retain new counsel for the appeal or wished to proceed pro se and whether he was on active duty with the military.
Sharp admitted the conduct described by the court of appeals and acknowledged it violated the Rules of Professional Conduct.
On Feb. 6, 2009, Sharp sent a check in the amount of $1,150 to the court of appeals as payment for the sanction. In a letter to the court of appeals dated Feb. 14, 2009, Sharp’s client asked if he could put the appeal on hold or request an appeal at a later date because he was not prepared at that time to drop the appeal or to go forward, and he needed time to determine whether he could obtain further representation.
On Feb. 27, 2009, an attorney acting on behalf of the client filed a motion to extend the appellate deadline because he had been contacted by the client only two weeks before and had just obtained the file from Sharp.
In an order dated March 6, 2009, the court of appeals extended until March 27, 2009, the time for the client to advise whether he would proceed pro se or with new counsel. The order contained a footnote indicating that Sharp had paid the $1,150 fine on Feb. 9, 2009, but that he had not filed the statement on transcript.
In an order dated April 17, 2009, the court of appeals stated that the client had not informed the court as to whether he had decided to proceed pro se or by new counsel and noted that Sharp had been barred from practice before the court for repeated disregard of the court’s orders. The court further noted that on its own motion, it was supplementing the records on appeal with the transcript of proceedings held on Nov. 21, 2005, and indicated that the client would be responsible for briefing the appeal in a timely fashion.
In failing to advance the client’s appeal, Sharp violated SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”
By disregarding multiple orders of the court of appeals, Sharp violated SCR 20:3.4(c), which states, “A lawyer shall not … disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”
Sharp had no prior discipline.
Hearing to reinstate Arik J. Guenther
On Monday, May 23, 2011, at 9 a.m., a public hearing will be held before referee James W. Mohr Jr. at the Washington County Justice Center, 432 E. Washington St., West Bend, on the petition of Arik J. Guenther, Jackson, to reinstate his law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.
Guenther is petitioning for reinstatement from suspensions imposed in 2005 and 2009. The Wisconsin Supreme Court suspended Guenther’s law license for eight months, effective Aug. 30, 2005, for misconduct prosecuted and proved in two disciplinary proceedings. Disciplinary Proceedings Against Guenther, 2005 WI 133. Guenther filed a reinstatement petition in 2006 but withdrew it in 2007. He filed another reinstatement petition in 2008 that was dismissed. In 2009, the supreme court imposed an additional nine-month suspension of Guenther’s law license for professional misconduct. Disciplinary Proceedings Against Guenther, 2009 WI 25.
To be reinstated, Guenther has the burden of substantiating by clear, satisfactory, and convincing evidence that he has the moral character to practice law in Wisconsin, his resumption of the practice of law will not be detrimental to the administration of justice or subversive of the public interest, all representations in his reinstatement petition are substantiated, and he has complied fully with the terms of the suspension order and with supreme court rules.
Relevant information may be provided to or obtained from OLR investigator Robert Weber or OLR litigation counsel William J. Weigel, 110 E. Main St., Suite 315, Madison, WI 53703. The OLR’s toll-free number is (877) 315-6941.
Disciplinary proceeding against William J. Grogan
The supreme court suspended the law license of William J. Grogan, Appleton, for 60 days, effective March 7, 2011. The court further imposed conditions on Grogan’s license and ordered him to pay the costs of the disciplinary proceeding. Disciplinary Proceedings against Grogan, 2011 WI 7.
In 2007, Grogan was publicly reprimanded for failing to timely file tax returns and failing to provide information to the OLR during an unrelated investigation.
In 2004, the Wisconsin Department of Revenue seized $2,000 from Grogan. In 2005, the IRS seized $4,000, and Grogan petitioned for bankruptcy. On March 6, 2006, shortly before the bankruptcy was dismissed, Grogan opened a client trust account. At that point, Grogan’s business account had been closed because of overdrafts, and he had no personal account.
Beginning in May 2007, the OLR sent Grogan multiple requests for trust account information and records. Grogan failed to fully respond until June 2008. Similar requests were sent to Grogan in July 2008 in connection with 16 overdrafts on his trust account that month. Grogan failed to respond to those inquiries until the court issued an order to show cause why his license should not be suspended for willful failure to cooperate with the OLR, in violation of former SCR
20:1.15(e)(7), SCR 22.03(2) and (6), and SCR 20:8.4(h).
Grogan admitted that he used his trust account as a business and personal account. He commingled funds in the trust account and paid for office rent, groceries, and prepaid cash cards from the trust account, in violation of former SCR 20:1.15(b)(3). In addition, by failing to maintain a business account, Grogan violated former SCR 20:1.15(e)(8). He also violated several other trust account rules – specifically, former SCR 20:1.15(e)(4)a., by making 46 cash withdrawals totaling $5,880.20; former SCR 20:1.15(f)(1)b., by failing to maintain client ledgers; and former SCR 20:1.15(f)(1)d., by failing to identify the client or matter relating to each deposit on his trust account deposit slips, particularly 72 cash deposits totaling $19,470.
The court also imposed the following conditions on Grogan’s license: 1) attendance at an OLR trust account seminar; 2) establishment of a new trust or fiduciary account before accepting client or third-party funds; and 3) provision to the OLR of an overdraft agreement for any trust or fiduciary account, documentation of the existence of a business account, and quarterly reports for his trust or fiduciary account for a year after establishing such an account.
Hearing to reinstate Jane Edgar
On May 23, 2011, at 9:30 a.m., a public hearing will be held before referee Hannah C. Dugan at the Milwaukee Bar Association, 424 E. Wells St., Milwaukee, on the petition of Jane Edgar, Milwaukee, to reinstate her law license. Any interested person may appear at the hearing and be heard in support of, or in opposition to, the petition for reinstatement.
The Wisconsin Supreme Court suspended Edgar’s Wisconsin law license for two years, effective March 22, 1999, for professional misconduct consisting of converting funds, improperly commingling funds, and falsely certifying that she had a trust account and maintained proper trust account and bank records. Disciplinary Proceedings Against Edgar, 230 Wis. 2d 205, 601 N.W.2d 284 (1999).
In 2003, the supreme court suspended Edgar’s law license for an additional year, commencing retroactively on March 22, 2001, for misconduct consisting of multiple violations of several rules: failing to take reasonably practicable steps to protect her clients’ interests; failing to keep clients reasonably informed or to comply with clients’ reasonable requests for information; failing to act with reasonable diligence; failing to cooperate with OLR grievance investigations; and single counts of failing to render a full accounting in connection with a fee advance, practicing law while under an administrative suspension, and failing to obtain a written conflict waiver. Disciplinary Proceedings Against Edgar, 2003 WI 49, 261 Wis. 2d 413, 661 N.W.2d 817.
Edgar has the burden of substantiating by clear, satisfactory, and convincing evidence that her law license should be reinstated. See SCR 22.31(1).
Relevant information may be provided to or obtained from OLR investigator Sarah Peterson, 110 E. Main St., # 315, Madison, WI 53703, phone (877) 315-6941, or the OLR’s retained counsel in this matter, attorney Robert G. Krohn, 24 N. Henry St., P.O. Box 151, Edgerton, WI 53534, (608) 884-3391.