OLR Compendium > Public Reprimand of Gary E. Grass

Public Reprimand of Gary E. Grass

2019-OLR-7

Attorney Gary E. Grass of Milwaukee engaged in misconduct in two matters.

FIRST MATTER

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.

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.”

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.”

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.”

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)….”

SECOND MATTER

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.

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.”

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)….”

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.