OLR Compendium > Disciplinary Proceedings Against Grade

Disciplinary Proceedings Against Grade

2007 WI 108, 304 Wis.2d 531, 735 N.W.2d 523 (2007)

ATTORNEY disciplinary proceeding. Attorney's license revoked.

¶1 PER CURIAM. We review a referee's report and recommendation for discipline recommending that the license of Attorney Daniel R. Grade to practice law in Wisconsin be revoked. The referee's report incorporates a stipulation entered into between Attorney Grade and the Office of Lawyer Regulation (OLR) whereby Attorney Grade stipulated to 36 counts of misconduct alleged in a complaint filed by the OLR on April 5, 2006. We adopt the referee's findings of fact and conclusions of law and agree that Attorney Grade's license to practice law in Wisconsin should be revoked. We also agree with the referee that Attorney Grade should be required to pay the entire costs of the proceeding.

¶2 Attorney Grade was admitted to practice law in Wisconsin in 1993. His most recent address, as furnished to the State Bar of Wisconsin, is in Wauwatosa. Attorney Grade's license was administrative suspended in June 2004 due to his failure to report mandatory continuing legal education (CLE) requirements. His license was temporarily suspended on August 24, 2004, pursuant to SCR 22.03(4), due to his failure to cooperate with two OLR grievance investigations. His license remains suspended.

¶3 As previously noted, in April 2006 the OLR filed a complaint alleging 36 counts of misconduct. The majority of the counts of misconduct related to Attorney Grade's handling of probate matters. He was also alleged to have engaged in misconduct while representing clients in a real estate transaction and a collection matter. In addition, the complaint alleged that Attorney Grade willfully failed to cooperate with the OLR's investigation of various grievances.

¶4 Stanley F. Hack was appointed referee on May 10, 2006. Various telephone conferences were held. A hearing before the referee was held on October 24, 2006, at which time testimony was taken from various witnesses and various exhibits were introduced and received. At the close of the hearing Attorney Grade and the OLR entered into a stipulation whereby Attorney Grade stipulated to the misconduct alleged in all 36 counts of the OLR's complaint.

¶5 The referee issued his report and recommendation on February 22, 2007. The referee noted that Attorney Grade admitted he had abandoned his practice of law without any notification to his clients or the courts and, as a result, breached his fiduciary duties to his clients, the court and the OLR. The referee also noted that a receiver had been appointed to take over Attorney Grade's law practice, pursuant to SCR 12.03(2).

¶6 The referee found that all 36 counts of misconduct alleged in the OLR's complaint had been proven. Specifically, the referee found that Attorney Grade violated SCRs 20:1.4(a), 20:1.3, 20:8.4(c), 20:1.5(b), 20:8.4(f), 20:1.16(d), 20:3.2, 20:3.4(c), 22.03(6), 22.04(1), 21.15(4), 22.03(2), former 20:1.15(b), and former 20:1.15(f).

¶7 As to the appropriate sanction to be imposed for Attorney Grade's misconduct, the referee noted that Attorney Grade testified at the hearing that he suffered from depression. He implied his medical condition mitigated his misconduct. The referee rejected this contention, noting that the depression was diagnosed significantly after most of the conduct alleged in the OLR's complaint had already occurred. The referee also noted there was no physician testimony presented at the hearing, and the referee concluded the medical evidence was insufficient to support a connection between the misconduct and the medical condition.

¶8 The referee noted that the allegations in the OLR's complaint, which were fully stipulated, were very serious and involved the abandonment of Attorney Grade's law practice, neglect of many probate matters, misrepresentations to clients, failure to cooperate with the OLR, and a lack of effort to return funds owed to clients. The referee recommended that Attorney Grade's license be revoked, that he be required to provide an accounting, that he make appropriate restitution, and that he pay the entire costs of the proceeding, which are $6621.52 as of March 14, 2007.

¶9 The allegations in the OLR's complaint, which were adopted by the referee, mentioned possible discrepancies in Attorney Grade's accounting and possible overcharges in a number of client matters detailed. The precise amounts Attorney Grade might owe to any of his former clients were, however, unclear. For that reason, on April 17, 2007, this court issued an order requesting the OLR and Attorney Grade to submit written statements setting forth the amount of restitution they believed was owed and to whom it was owed. Attorney Grade failed to respond. The OLR filed a response saying it lacked sufficient records to determine the exact restitution that might be owed. It suggested this court order Attorney Grade to submit an accounting of funds regarding each client mentioned in the OLR's complaint and order him to reimburse any unearned fees to those clients.

¶10 This court upholds a referee's findings of fact unless they are clearly erroneous. See In re Disciplinary Proceedings Against Carroll, 2001 WI 130, ¶29, 248 Wis. 2d 662, 636 N.W.2d 718. This court independently reviews the referee's legal conclusions. Id. Here, the record supports the referee's findings of fact and legal conclusions, and they are unchallenged. Therefore, this court approves and adopts both the referee's findings of fact and conclusions of law.

¶11 It is ultimately this court's responsibility to determine the appropriate discipline to impose. See In re Disciplinary Proceedings Against Reitz, 2005 WI 39, ¶74, 279 Wis. 2d 550, 694 N.W.2d 894. The seriousness of Attorney Grade's professional misconduct demonstrates that it is necessary to revoke his license to practice law in Wisconsin to protect the public, courts and legal system from the repetition of misconduct, as well as to impress upon Attorney Grade the seriousness of his misconduct and deter other attorneys from engaging in misconduct. We also agree with the referee that Attorney Grade should pay the full costs of the proceeding.

¶12 As to the issue of restitution, while it appears that Attorney Grade may very well owe restitution to one or more clients, the court is unable to determine from the record what amounts are owed and to whom they are owed. Consequently, rather than making a specific award of restitution at this time we deem it appropriate to require Attorney Grade as a condition of the reinstatement of his license to practice law in Wisconsin, to provide a full accounting of funds regarding each client mentioned in the OLR's complaint and to reimburse any unearned fees to his clients.

¶13 IT IS ORDERED that the license of Daniel R. Grade to practice law in Wisconsin is revoked, effective the date of this order.

¶14 IT IS FURTHER ORDERED that within 60 days of the date of this order Daniel R. Grade pay to the Office of Lawyer Regulation the costs of this proceeding. If the costs are not paid within the time specified, and absent a showing to this court of his inability to pay the costs within that time, the license of Daniel R. Grade will remain revoked until further order of the court.

¶15 IT IS FURTHER ORDERED that as a condition of reinstatement of his license to practice law in Wisconsin Daniel R. Grade furnish a complete accounting of funds regarding each client mentioned in the OLR's disciplinary complaint and reimburse any unearned fees to those clients.

¶16 IT IS FURTHER ORDERED that to the extent he has not already done so, Daniel R. Grade comply with the provisions of SCR 22.26 concerning the duties of a person whose license to practice law in Wisconsin has been revoked.