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In re Disciplinary Proceedings Against Grass

Supreme Court of Wisconsin

April 16, 2019

In the Matter of Disciplinary Proceedings Against Gary E. Grass, Attorney at Law: Office of Lawyer Regulation, Complainant,
v.
Gary E. Grass, Respondent.

         DISCIPLINARY PROCEEDINGS AGAINST GRASS

         ATTORNEY disciplinary proceeding. Attorney's license suspended.

          PER CURIAM.

         ¶1 We review a stipulation filed pursuant to Supreme Court Rule (SCR) 22.12 by the Office of Lawyer Regulation (OLR) and Attorney Gary E. Grass. In the stipulation, Attorney Grass admits that he committed professional misconduct, and he agrees with the OLR's request that his license to practice law in Wisconsin be suspended for a period of 60 days.

         ¶2 After careful review of the matter, we accept the stipulation and impose the requested discipline. Because Attorney Grass entered into a comprehensive stipulation before the appointment of a referee, we do not require him to pay the costs of this proceeding.

         ¶3 Attorney Grass was admitted to practice law in Wisconsin in 2003. He has no prior disciplinary history. Effective May 22, 2018, his Wisconsin law license was suspended for failure to comply with mandatory continuing legal education reporting requirements. Effective October 31, 2018, his license was suspended for failure to pay state bar dues and provide OLR trust account certification. On November 13, 2018, his law license was temporarily suspended by this court for failure to cooperate with three OLR investigations into his conduct. His law license remains suspended.

         ¶4 On December 27, 2018, the OLR filed a complaint alleging that Attorney Grass had engaged in 14 counts of misconduct arising out of his representation of five clients. On February 15, 2019, the OLR and Attorney Grass filed their stipulation. We take the following facts from that stipulation.

         Client W.H.

         ¶5 In or about November 2009, Attorney Grass was appointed by the public defender's office to appear as appellate counsel on behalf of W.H. in a criminal matter in Waukesha County. Attorney Grass filed an appeal on behalf of W.H. relating to modification of the original sentence and a re-confinement sentence as well as raising an ineffective assistance of counsel claim.

         ¶6 In June 2012, the court of appeals issued an order finding that W.H. was entitled to a resentencing hearing and remanding the matter for a hearing on the ineffective assistance of counsel claim. The court of appeals held that the motion to modify the original sentence could not properly be decided in the context of that appeal.

         ¶7 In September of 2016, W.H. retained Attorney Grass to represent him regarding a motion to modify the original sentence. Attorney Grass received a $1, 000 fee from W.H., some of which was applied to work Attorney Grass had already performed and some of which was to be for future services. Attorney Grass did not place the $1, 000 into his trust account. It is unclear how much of the fee was applied to work already performed and how much was paid in contemplation of future services. Attorney Grass did not have a written fee agreement with W.H.

         ¶8 W.H. filed a grievance with the OLR against Attorney Grass on June 23, 2017. On June 26, 2017, Attorney Grass filed a motion to modify the original sentence. The circuit court denied that motion in March 2018.

         ¶9 In a letter dated January 29, 2018, an OLR investigator requested that Attorney Grass provide additional information relating to W.H.'s grievance. The OLR gave Attorney Grass several extensions of time to respond to the request for information but he never responded. The OLR filed a motion with this court seeking an order that Attorney Grass show cause why his Wisconsin law license should not be temporarily suspended for his failure to cooperate in this and two other OLR investigations. On November 13, 2018, this court issued an order temporarily suspending Attorney Grass' Wisconsin law license.

         ¶10 By virtue of entering into the stipulation, Attorney Grass admitted the following counts of misconduct with respect to his representation of W.H.:

Count 1: By failing to place the portion of W.H.'s $1, 000 constituting an advanced fee into his trust account, Attorney Grass violated SCR 20:1.5(f), [1]
Count 2: By willfully failing to respond to the OLR's request for additional information relating to W.H.'s grievance, Attorney Grass violated SCR 22.O3(6), [2]enforceable via SCR 20:8.4(h).[3]

         Client M.E.

         ¶11 In April 2016, M.E. hired Attorney Grass as postconviction counsel in a criminal matter in Milwaukee County. Attorney Grass agreed to review M.E.'s criminal conviction and prepare a motion challenging it. Pursuant to the terms of the fee agreement, M.E. agreed to pay a $1, 000 advanced fee. Attorney Grass agreed to provide M.E.'s mother, E.E., with monthly billing statements.

         ¶12 Attorney Grass did not file any postconviction motions on behalf of M.E., nor did he provide E.E. with monthly billing statements.

         ¶13 In November 2017, M.E. and E.E. both filed grievances with the OLR about Attorney Grass' handling of the postconviction matter. In April 2018, Attorney Grass told M.E. and E.E. that a motion would be fully completed in two or three weeks, but he failed to follow through.

         ¶14 In a letter dated May 30, 2018, M.E. wrote to the OLR regarding the status of his case and Attorney Grass' law license. Attorney Grass had failed to notify M.E. of his suspension.

         ¶15 In a letter dated February 2, 2018, the OLR forwarded the grievances of M.E. and E.E. to Attorney Grass and requested a response. In spite of being given several extensions of time to provide a response, Attorney Grass failed to do so. This court's November 13, 2018 order temporarily suspending Attorney Grass' law license was based in part on his failure to respond to the grievances filed by M.E. and E.E.

         ¶16 By virtue of entering into the stipulation, Attorney Grass admitted the following counts of misconduct with respect to his representation of M.E.:

Count 3: By failing to file a postconviction motion on M.E.'s behalf prior to the May 22, 2018 administrative suspension of his law license, Attorney Grass violated SCR 20:1.3.[4]
Count 4: By failing to notify M.E. of the May 22, 2018 suspension of his law license and his consequent inability to practice law, Attorney Grass violated SCR 22.26(1), [5] enforceable via SCR 20:8.4(f).[6]
Count 5: By willfully failing to respond to the OLR's February 2, 2018 letter seeking a response to the grievances by M.E. and E.E., Attorney Grass violated SCR 22.03 (2)[7] and SCR 22.03(6), enforceable via SCR 20:8.4(h).

         Client ...


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