793 N.W.2d 494
Wis.2010Background
- Kostich, Wisconsin lawyer since 1970, Milwaukee practitioner, had prior public reprimands in 1986 and 2005.
- OLR filed a complaint on February 4, 2009 alleging a conflict of interest in Kostich's representation of Giannini in a criminal case.
- G.K., age 13 in 1965, was a victim of Sister Norma Giannini; GK discussed a potential civil action with Kostich and provided confidential information.
- Kostich later represented Giannini in a criminal proceeding arising from the same alleged sexual assaults; GK objected when learning of the representation.
- GK had disclosed confidential information and therapy records to Kostich; no written consent from GK for the later representation was obtained.
- Referee found a clear conflict of interest and that Kostich acted contrary to SCR 20:1.9(a); the supreme court imposed a public reprimand plus ethics CLE and ordered costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Kostich violate SCR 20:1.9(a)? | OLR argues former client GK, adverse interests, no written consent; conflict prohibited. | Kostich contends no representation of GK and no conflict; no written agreement or file created. | Yes; represented Giannini after GK's consultation, violating SCR 20:1.9(a). |
| Was GK a former client and the matter substantially related? | GK's confidential information and therapy records showed a substantial relation to Giannini case. | No formal attorney-client relationship established; no file or retainer. | GK was a former client and the representation of Giannini was substantially related. |
| What is the appropriate sanction? | Public reprimand plus additional ethics CLE and costs reflect egregious conflict. | Varying discipline arguments appear; not addressed beyond costs and reprimand. | Public reprimand plus ten ethics CLE credits within 12 months and payment of costs; potential suspension for noncompliance. |
Key Cases Cited
- In re Disciplinary Proceedings Against Kostich, 282 Wis.2d 206 (2005 WI) (SCR 20:1.9(a) conflict after former representation; consent required)
- In re Disciplinary Proceedings Against Kostich, 700 N.W.2d 763 (2005) (same disclipinary context; detailed findings)
- In re Disciplinary Proceedings Against Kostich, 132 Wis.2d 227 (1986 WI) (earlier reprimand for unrelated misconduct)
- Kalal, 252 Wis.2d 261 (2002 WI) (standards for reviewing referee's findings of fact and conclusions of law)