## Facts

- In 1965, Sister Norma Giannini allegedly molested G.K., a minor student at a Milwaukee Catholic school where Giannini was G.K.’s teacher and principal.
- In 1996 or 1997, G.K. met twice with attorney Nikola P. Kostich to discuss a possible civil lawsuit against Giannini arising out of the alleged abuse.
- During those meetings, G.K. disclosed highly confidential personal information and authorized Kostich to review G.K.’s therapy records.
- Kostich agreed to research whether the statute of limitations barred the potential civil claim; G.K. and Kostich discussed fees, but no written retainer agreement was signed.
- Kostich later declined the matter and told G.K. that he believed the statute of limitations barred the civil suit.
- In 2006, Giannini was criminally charged with two counts of indecent behavior with a child based on allegations from G.K. and another former student.
- The criminal complaint identified G.K. as a victim, and police reports described Kostich as G.K.’s attorney.
- Kostich (with another lawyer) appeared for Giannini at a pretrial hearing and continued representing her after G.K. learned of the representation.
- After discovering Kostich’s role, G.K. called Kostich and filed a grievance with the Office of Lawyer Regulation (OLR).
- Giannini ultimately entered a no-contest plea.
- The OLR filed a disciplinary complaint alleging that Kostich committed misconduct by representing Giannini in a matter materially adverse to a former client (G.K.) in a substantially related matter.
- After an evidentiary hearing, a referee found that G.K. was Kostich’s former client and that Kostich’s representation of Giannini violated Wisconsin’s conflict-of-interest rules; the Wisconsin Supreme Court reviewed the referee’s report.

## Issues

1. Whether G.K.’s two consultations with Kostich, including the sharing of confidential information and authorization to review therapy records, created an attorney-client relationship such that G.K. was a former client.
2. If G.K. was a former client, whether Kostich’s later representation of Giannini in a criminal case based on the same alleged abuse was materially adverse and substantially related, requiring informed consent and therefore constituting misconduct when undertaken without it.
3. What discipline was appropriate in light of the violation and the surrounding circumstances.

## Decision

- The Wisconsin Supreme Court accepted the referee’s factual findings and conclusions that were supported by satisfactory and convincing evidence.
- The court agreed that an attorney-client relationship existed between G.K. and Kostich during the 1996–1997 consultations, even though no written retainer was signed and Kostich later declined to file suit.
- The court concluded that Kostich’s defense of Giannini in the criminal prosecution was directly adverse to G.K. and substantially related to the earlier consultations, creating a prohibited former-client conflict absent informed consent confirmed in writing.
- The court imposed a public disciplinary sanction, suspending Kostich’s license and ordering him to pay costs.

## Legal Principles

- An attorney-client relationship may arise from consultations when a person seeks legal advice and shares confidential information for the purpose of obtaining that advice, even if no fee is paid and no written retainer is executed.
- Lawyers owe former clients continuing duties of loyalty and confidentiality after the representation ends.
- A lawyer may not represent a new client in the same or a substantially related matter when the new client’s interests are materially adverse to a former client’s interests, unless the former client gives informed consent confirmed in writing.
- Matters are “substantially related” when they involve the same events or when confidential information from the earlier representation could materially advance the new client’s position against the former client.
- In attorney-discipline cases, the court may impose suspension where a conflict reflects a serious breach of duties to a former client, particularly when the lawyer proceeds despite the former client’s objection.

## Conclusion

The Wisconsin Supreme Court held that G.K.’s confidential consultations with Kostich created a former-client relationship and that Kostich committed professional misconduct by later representing Sister Norma Giannini in a criminal case arising from the same alleged abuse without G.K.’s informed written consent, warranting a suspension and assessment of costs.


In the Matter of Disciplinary Proceedings Against Nikola P. Kostich, 330 Wis. 2d 378 (2010)