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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.
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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.”
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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.
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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.”
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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.
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