OLR Compendium > Public Reprimand of David L. Grace

Public Reprimand of David L. Grace

2011-OLR-1

Attorney David L. Grace was appointed to represent a man who had been charged with violating a domestic abuse restraining order, a misdemeanor. The case was tried to the circuit court, who found Grace’s client guilty and ordered him to pay a fine and costs. After finding Grace’s client guilty, however, the court did not direct Grace and the client to sign a Notice of Right to Seek Postconviction Relief as was required by Wis. Stat. Sec. 973.18(3).

Immediately after the trial, the client told Grace that he wanted to appeal the conviction and asked if he could provide additional evidence. Grace said that he would try to speak with the judge and let the client know. Later that same day, Grace and the client each traveled past the site where the restraining order violation had occurred and each concluded that the court had made errors in recalling the site. Grace and his client spoke by phone about their having visited the site, and Grace allegedly said he would try to speak with the judge and let the client know if the judge would reopen the case based on new evidence.

Several days after the trial, the client wrote to the court, with a copy to Grace, and requested a trial transcript. Subsequent to the trial, the client also placed multiple calls to Grace’s office, but he did not return any of them. Grace did not file an appeal or contact the court. In particular, Grace did not file a Notice of Intent to Seek Post-conviction Relief, pursuant to Wis. Stat. Sec. 809.30(2)(a) & (b), which would have been due 20 days after the client’s sentencing.

The client subsequently wrote three letters to Grace about filing an appeal, but Grace did not reply to any of them. The client also asked Grace about the appeal during a meeting in another matter. The client also copied Grace on correspondence to the court in which the client said he wanted to appeal the conviction, but Grace took no action.

Representing himself, the client was successful in his request to have the prior judgment vacated, with the matter scheduled for a jury trial. The court later dismissed the case on a prosecutor’s motion.

After the client expressed to Grace orally and in writing his desire to pursue an appeal or other post-conviction relief in the matter, and having done so within the statutory deadline for filing a Notice of Intent, Grace, by his failure to act in furtherance of the client’s stated objectives, violated the following Supreme Court Rules of Professional Conduct:

• SCR 20:1.2(a), which states in relevant part, “Subject to pars. (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by SCR 20:1.4, shall consult with the client as to the means by which they are to be pursued…”

• SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

By failing to respond to multiple telephonic and written inquiries in which the client requested information and/or action in the matter, Grace violated SCR 20:1.4(a)(4), which states, “A lawyer shall promptly comply with reasonable requests by the client for information.”

In unrelated matters, the same client was charged in a different county with committing misdemeanors in two cases, and Grace was appointed to represent him. Grace represented the client at pretrial conferences. Additional conferences were scheduled to be held approximately a month later. On the day of the additional conferences, the client called Grace’s office and told Grace that he could not attend court because he was ill. Grace told OLR that he informed the client that the judge would require verification of his illness due to numerous adjournments that had already been granted in the case. Grace said he also told the man that a warrant may issue for his non-appearance. Grace subsequently arranged to appear if requested by the judge, but the judge did not make that request.

Grace did not attend the additional conferences. During the conferences, the prosecutor stated that Grace was available by phone and that Grace had heard from his client, who said he was ill and would not be appearing. According to the prosecutor, Grace had said that he had also been ill and did not want to travel to court if his client was not going to appear. The prosecutor, who was unwilling to adjourn the pretrial conferences, requested that a bench warrant be issued against the client because the matters had been pending for a long time. The court issued a bench warrant for the client’s arrest for bail jumping.

Grace was not specifically informed of the bench warrant, but he said that he assumed that the court would issue a warrant. Grace told OLR that he believed he had told the client that the client’s failure to appear without a doctor’s excuse would not be accepted by the prosecutor nor by the court and would result in the issuance of a warrant. Grace did not communicate further with the client regarding the warrant.

Approximately six weeks later, the client was arrested on the warrant and remained in jail for two days before making bail on a cash bond. Grace eventually withdrew from the cases after the client filed a grievance against him with OLR.

A month after Grace withdrew from the cases, the former client began calling Grace’s office and requesting copies of his files and the return of his original documents. The former client also made a written request for the files. The former client told OLR that he called Grace’s office at least 10 times since he made the written request, but Grace failed to return any of the calls or send the information he requested.

Following his own and his client’s failure to appear at the pretrial conferences, by failing to take steps to learn whether any adverse implications (including issuance of a bench warrant) in fact arose from the non- appearance and to then relay any such information to his client, Grace violated the following Supreme Court Rules of Professional Conduct:

• SCR 20:1.3, which states, “A lawyer shall act with reasonable diligence and promptness in representing a client.”

• SCR 20:1.4(a)(3), which states, “A lawyer shall keep the client reasonably informed about the status of the matter.”

Subsequent to his withdrawal from the representation, by failing to respond to the client’s written and telephonic requests for the case materials, Grace violated SCR 20:1.16(d), which states in relevant part, “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as…surrendering paper and property to which the client is entitled…”

In 2004 and 1999, Grace received private reprimands, in part, for neglecting legal matters entrusted to him.

In accordance with SCR 22.09(3), Attorney David L. Grace is hereby publicly reprimanded.