Public Reprimand of Gary E. Grass
2019-OLR-7
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Attorney Gary E. Grass of Milwaukee engaged
in misconduct in two matters.
On May 10, 2017, a client hired Grass as his
appellate counsel following the client’s
criminal conviction in Milwaukee County
Circuit Court. Grass’ fee agreement set
forth an hourly rate of $250, with reduced
hourly rates applying after the first four
hours of work. The client’s mother paid
Grass a total of $500 for his services, paid
in installments ranging from $50 to $100.
On September 12, 2017, the client sent Grass
his complete files relating to his appeal
and the underlying circuit court case. The
client’s files were on a compact disc and on
a floppy disc that contained a brief drafted
by the client. From October, 2017 through
April, 2018, Grass filed six motions to
extend the time to file a brief on the
client’s behalf. Grass states that in the
same period, he also reviewed the client’s
case file and began to rewrite the brief
that the client had drafted. However, Grass
has not produced any notes or drafts, and he
did not provide the client with any drafts
of a revised brief, any updates regarding
his progress, or any billing statements
reflecting his time spent on the matter.
Grass’ law license was suspended for failure
to comply with continuing legal education
(“CLE”) requirements, effective May 22,
2018, and for failure to comply with State
Bar dues and trust account certification
requirements, effective October 31, 2018.
Subsequent to the May 22, 2018 suspension of
his law license, Grass failed to promptly
take steps to protect the client’s interests
regarding the appeal. On or around June 21,
2018, the client’s mother met with Grass at
his residence, at which time Grass informed
her that his license had been suspended.
Grass told the client’s mother that he knew
of two attorneys who might be willing to
take over the representation. Ultimately,
Grass did not find anyone to handle the
client’s case subsequent to his suspension.
By letter dated July 3, 2018, Grass informed
the Wisconsin Court of Appeals that his law
license had been suspended. Grass’ letter
covered the client’s matter and four other,
unrelated appeals. Grass stated in the
letter, “I do hope to be reinstated
relatively soon and resume representation of
my clients.” Grass did not reinstate from
the CLE suspension to which he was then
subject (or the dues/trust account
certification suspension that would follow),
and beginning on July 9, 2018, the client
proceeded pro se, making at least seven
filings on his own behalf, which included
several motions to extend time and his
opening appellate brief.
By letter dated August 17, 2018, the client
asked Grass if he was still willing and able
to continue representing him. The client
also requested a copy of his case file and a
refund of at least 50% of the fees and an
itemized statement reflecting Grass’ work
performed on the client’s behalf. Grass did
not respond to the client. Grass states he
does not recall receiving the letter, and
that he would have been willing to continue
to represent the client, but he thought the
client may have hired successor counsel. In
any event, Grass was ineligible to act on
the client’s behalf at that time as his law
license had been continuously suspended
since May 22, 2018. Grass did not provide
the client with an itemized accounting and
does not believe that any fees paid to him
were unearned. Grass also failed to provide
the client with his complete file. On April
16, 2019, the client was able to obtain a
copy of his complete file record from trial
counsel, allowing him to complete his
appellate brief.
The Office of Lawyer Regulation (“OLR”)
first provided Grass with notice of the
client’s grievance by letter dated November
16, 2018. OLR established a response
deadline of December 12, 2018.
Notwithstanding his knowledge of the
grievance and of his obligation to respond,
Grass did not respond to the client’s
grievance until June 5, 2019.
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By failing to advance the client’s interests
in the matter of an appeal or post-conviction
motion, Grass violated SCR 20:1.3, which
states, “A lawyer shall act with reasonable
diligence and promptness in representing a
client.”
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Subsequent to the May 22, 2018 suspension of
his law license, by failing to confirm with
the client that he could no longer act on
the client’s behalf and that the client
should seek successor counsel or proceed
pro
se, Grass violated SCR 22.26(1)(a) and
(b),
which state, “On or before the effective
date of license suspension or revocation, an
attorney whose license is suspended or
revoked shall do all of the following: (a)
Notify by certified mail all clients being
represented in pending matters of the
suspension or revocation and of the
attorney’s consequent inability to act as an
attorney following the effective date of the
suspension or revocation; (b) Advise the
clients to seek legal advice of their choice
elsewhere . . . .” SCR 22.26(1)(a) and (b)
are enforced under the Rules of Professional
Conduct via SCR 20:8.4(f), which states, “It
is professional misconduct for a lawyer to
violate a statute, supreme court rule,
supreme court order or supreme court
decision regulating the conduct of lawyers.”
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By failing to either refund unearned fees or
produce an accounting showing no refund was
due, and by failing to return the client’s
case materials, Grass violated SCR 20:1.16(d),
which states, “Upon termination of
representation, a lawyer shall take steps to
the extent reasonably practicable to protect a
client’s interests, such as . . . surrendering
papers and property to which the client is
entitled and refunding any advance payment of
fee or expense that has not been earned or
incurred.”
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By willfully failing to timely respond to
OLR’s November 16, 2018 letter seeking a
response to the client’s grievance, Grass
violated SCR 22.03(2), which states, “The
respondent shall fully and fairly disclose
all facts and circumstances pertaining to
the alleged misconduct within 20 days after
being served by ordinary mail a request for
a written response,” and SCR 22.03(6), which
states, “In the course of the investigation,
the respondent’s willful failure to provide
relevant information, to answer questions
fully, or to furnish documents and the
respondent’s misrepresentation in a
disclosure are misconduct, regardless of the
merits of the matters asserted in the
grievance.” Violations of SCR 22.03(2) and
22.03(6) are enforced via SCR 20:8.4(h),
which states, “It is professional misconduct
for a lawyer to fail to cooperate in the
investigation of a grievance filed with the
office of lawyer regulation as required by …
SCR 22.03(2), SCR 22.03(6)….”
Grass provided assistance and legal
representation to an incarcerated client in
a federal matter in which the client sought
habeas corpus relief. Grass had
previously
represented the client in the initial post-
conviction and appellate stages that
followed the client’s criminal conviction in
Milwaukee County Circuit Court. There was
no written fee agreement and Grass did not
receive any payments for any work relating
to the federal matter.
Grass believed his formal representation of
the client ended on or around October 6,
2016, following the client’s unsuccessful
efforts before the Wisconsin Court of
Appeals. Grass’ subsequent agreement to
continue “assisting” the client in seeking
federal habeas corpus relief reasonably
caused the client to be confused as to
whether Grass had agreed to continue his
representation in an official capacity. The
client stated, “He continued to act as my
Attorney, while filing petitions receiving
responses from the courts and responding
back also to the courts.”
On February 17, 2018, the client
communicated with Grass, who told the client
he would continue to pursue habeas
corpus
relief. Grass’ Wisconsin law license would
become continuously suspended as of May 22,
2018, first for noncompliance with CLE
requirements, effective May 22, 2018, and
subsequently for failing to comply with
State Bar dues and trust account
certification requirements, effective
October 31, 2018. Grass failed to
communicate with the client from February
17, 2018 until March, 2019, which included a
failure to inform the client of his license
suspension. During that time, the client
did not have a current address or phone
number for Grass, but believed the attorney-
client relationship with Grass to be
ongoing.
Grass made at least three filings on the
client’s behalf in the federal case. By
letter dated January 6, 2017, Grass notified
the federal court that the client had filed
a Knight petition with the Wisconsin
Court
of Appeals on January 5, 2017. On January
30, 2018, Grass filed a status report, in
which Grass identified himself as “appearing
specially as counsel for this submission.”
On February 16, 2018, Grass filed a report
that stated that the client had submitted
his Knight petition in state court pro
se,
and that in the state proceeding, Grass was
identified as an “other interested party,”
that “acted as agent or attorney-in-fact
solely to assist in the submission of
materials.”
Grass’ efforts in pursuing habeas corpus
relief caused the client to reasonably
believe that Grass continued as his attorney
and that Grass was subject to the
professional obligations that attach to an
attorney-client relationship.
In March 2019, Grass informed the client
that his Wisconsin law license was suspended
and that he was unable to provide the client
with legal advice or representation. Grass
further told the client that he knew of an
attorney whom Grass would ask to take the
client’s case. There is no evidence Grass
took that step, or that any other attorney
agreed to take over the representation, or
that Grass took any other measures in the
wake of his license suspension to protect
the client’s interests.
The Office of Lawyer Regulation (“OLR”)
first provided notice of the client’s
grievance to Grass by letter dated November
27, 2018. OLR established a response
deadline of December 21, 2018.
Notwithstanding his knowledge of the
grievance and of his obligation to respond,
Grass did not respond to the client’s
grievance until June 5, 2019.
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By failing to timely inform the client of
his law license suspension commencing May
22, 2018, Grass violated SCR 22.26(1)(a) and
(b), which state, “On or before the
effective date of license suspension or
revocation, an attorney whose license is
suspended or revoked shall do all of the
following: (a) Notify by certified mail all
clients being represented in pending matters
of the suspension or revocation and of the
attorney’s consequent inability to act as an
attorney following the effective date of the
suspension or revocation; (b) Advise the
clients to seek legal advice of their choice
elsewhere . . . .” SCR 22.26(1)(a) and (b)
are enforced under the Rules of Professional
Conduct via SCR 20:8.4(f), which states, “It
is professional misconduct for a lawyer to
violate a statute, supreme court rule,
supreme court order or supreme court
decision regulating the conduct of lawyers.”
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By willfully failing to timely respond to
OLR’s November 27, 2018 letter seeking a
response to the client’s grievance, Grass
violated SCR 22.03(2), which states, “The
respondent shall fully and fairly disclose
all facts and circumstances pertaining to
the alleged misconduct within 20 days after
being served by ordinary mail a request for
a written response,” and SCR 22.03(6), which
states, “In the course of the investigation,
the respondent’s willful failure to provide
relevant information, to answer questions
fully, or to furnish documents and the
respondent’s misrepresentation in a
disclosure are misconduct, regardless of the
merits of the matters asserted in the
grievance.” Violations of SCR 22.03(2) and
22.03(6) are enforced via SCR 20:8.4(h),
which states, “It is professional misconduct
for a lawyer to fail to cooperate in the
investigation of a grievance filed with the
office of lawyer regulation as required by …
SCR 22.03(2), SCR 22.03(6)….”
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Grass was previously the subject of a 60-day
disciplinary suspension imposed by the Supreme
Court, effective April 16, 2019. The
disciplinary action was filed shortly after
receipt of the grievances in these matters,
and covered misconduct occurring close in time
to the misconduct described herein.
In accordance with SCR 22.09(3), Attorney Gary
E. Grass is hereby publicly reprimanded.
Dated this 22nd day of October, 2019.
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