Preview:

STATE OF MINNESOTA IN SUPREME COURT A11-0976 Original Jurisdiction Per Curiam Concurring in part, dissenting in part, Dietzen, J., Gildea, C.J., Stras, J.

In re Petition for Disciplinary Action against Stephen Vincent Grigsby, a Minnesota Attorney, Registration No. 291973. ________________________

Filed: July 11, 2012 Office of Appellate Courts

Martin A. Cole, Director, Robin J. Crabb, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, Minnesota, for petitioner. Stephen Vincent Grigsby, Fairbanks, Alaska, pro se. ________________________

SYLLABUS Where respondent practiced law while suspended by drafting and filing a brief for a former client and exceeded his implicit authority by falsely signing the former client's name to the brief, respondent's misconduct warrants a 60-day suspension from the practice of law. OPINION PER CURIAM. The Director of the Office of Lawyers Professional Responsibility ("Director") filed a petition for disciplinary action alleging that respondent Stephen Vincent Grigsby

1

violated Rules 1.2(a),1 3.3(a)(1),2 4.1,3 8.4(c)4 and (d),5 and 5.5(a),6 Minn. R. Prof. Conduct, by, without prior authorization, writing and filing an appellate brief for a former client while his privilege to practice law was suspended, signing the former client's name to the brief, and indicating that the former client was pro se. Following an evidentiary hearing, the referee concluded that Grigsby committed the violations alleged and recommended that his previous suspension be extended for a period of at least 9 months and that reinstatement, if any, be subject to the hearing required by Rule 18(d), Rules on Lawyers Professional Responsibility (RLPR). While we conclude that Grigsby has

committed most of the alleged misconduct, we decline to adopt the referee's

1

Rule 1.2(a), Minn. R. Prof. Conduct, provides that "a lawyer shall abide by a client's decisions concerning the objectives of representation and . . . shall consult with the client as to the means by which they are to be pursued," but "[a] lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation."
2

Rule 3.3(a)(1), Minn. R. Prof. Conduct, provides that a lawyer shall not knowingly "make a false statement of fact or law to a tribunal, or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer."
3

Rule 4.1, Minn. R. Prof. Conduct, provides that "[i]n the course of representing a client a lawyer shall not knowingly make a false statement of fact or law."
4

Rule 8.4(c), Minn. R. Prof. Conduct, provides that it is misconduct for a lawyer to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation."
5

Rule 8.4(d), Minn. R. Prof. Conduct, provides that it is misconduct for a lawyer to "engage in conduct that is prejudicial to the administration of justice."
6

Rule 5.5(a), Minn. R. Prof. Conduct, provides that "[a] lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction." 2

recommended discipline; rather, we order that Grigsby be suspended from the practice of law for a period of 60 days. This disciplinary action arises out of Grigsby's representation of J.R. Before Grigsby was suspended, he was representing J.R. in a driving while under the influence case. After the district court declared a mistrial without J.R.'s consent and without considering less drastic alternatives, J.R. was retried and convicted on January 5, 2009. Grigsby filed J.R.'s notice of appeal on February 2, 2009. We suspended Grigsby from the practice of law for 60 days on April 16, 2009, for conduct unrelated to his representation of J.R. See In re Grigsby, 764 N.W.2d 54 (Minn. 2009). J.R.'s appeal was pending on April 16, and J.R.'s brief was due to the court of appeals during Grigsby's suspension. Grigsby's suspension took effect immediately; at that point,

Grigsby had not yet completed J.R.'s brief. Pursuant to our order, and Rule 26, RLPR, Grigsby notified J.R. in an April 29, 2009, letter that he was suspended and could not continue to represent J.R. The letter stated, "[a]s a client you may either hire substitute counsel and collect your file from me otherwise I will have another lawyer handle your case for no cost." While Grigsby found other attorneys to handle all of his other "30 or so odd cases," he was unable to find an attorney to handle J.R.'s appeal. Grigsby completed J.R.'s appellate brief, signed J.R.'s name to it, indicated that J.R. was pro se, and timely filed the brief with the court of appeals in late May 2009. Grigsby also sent a copy of the brief to J.R along with a letter explaining why the brief indicated that J.R. was pro se. The Assistant County Attorney assigned to J.R.'s appeal 3

believed that Grigsby had written the brief while suspended, and informed the Director. J.R. proceeded pro se, and his conviction ultimately was reversed on double jeopardy grounds. On May 31, 2011, over 2 years after this solitary instance of alleged misconduct, the Director filed a petition for disciplinary action against Grigsby. The petition asserts that Grigsby practiced law while suspended by writing the brief, in violation of Rule 5.5(a), Minn. R. Prof. Conduct. The petition further asserts that Grigsby violated Rules 3.3(a)(1), 4.1, and 8.4(c) and (d) by signing J.R.'s name to the brief, and Rule 1.2(a) by signing and filing the brief without prior authorization from J.R. The Director deposed J.R. during his investigation. Questioning focused on two areas: first, whether J.R. authorized Grigsby to sign J.R.'s name to and file the brief and, second, whether J.R. was acting pro se during his appeal. As to authorization, J.R.'s testimony strongly suggested that he had impliedly authorized Grigsby to sign J.R.'s name and file the brief. J.R. indicated that he did not know much about the appeals process, but that he wanted Grigsby to do everything that was required to assure that J.R.'s appeal was heard, including filing a brief. When questioned by the Director about whether J.R. ever explicitly authorized Grigsby to sign J.R.'s name to the brief, J.R. replied, "[Grigsby] never contacted me to even ask me. Otherwise I would have told him, yes. If he had to sign my name to get [the brief] in and get it done right away, I would have said, yes, to go ahead and sign my name." J.R. did not seem to know if he was acting pro se. When asked by the Director if he knew what pro se meant, J.R. replied in the negative, but noted that he was not acting as his own attorney. But J.R. also 4

testified that he never hired another attorney, and that he understood Grigsby's April 29, 2009, letter to mean that Grigsby was no longer his attorney. And when asked by Grigsby if he was "on [his] own" in the appeal after Grigsby was suspended, J.R. replied, "I would think so." Grigsby also gave testimony. Grigsby admitted that he completed the brief while suspended, signed J.R.'s name to the brief, indicated that J.R. was pro se, and filed the brief for J.R. But Grigsby denied that any of his conduct violated the Rules of

Professional Conduct. According to Grigsby, his conduct was justified under Rules 1.2(a) and 1.16(d).7 The referee issued findings of fact and conclusions of law on October 17, 2011. The referee made the following findings: Grigsby correctly notified J.R. and the court of appeals of Grigsby's suspension; J.R. did not hire another attorney to handle his appeal, but assumed that Grigsby would take care of the appeal; Grigsby completed and filed the brief while suspended; and Grigsby signed J.R.'s name to the brief without "explicit prior consent," falsely indicating that J.R. was pro se. The referee rejected Grigsby's argument that his conduct was justified under Rule 1.16(d). Even though J.R. testified that he would have told Grigsby to sign J.R.'s name to the brief if asked, the referee rejected Grigsby's argument that he had implicit authority to sign J.R.'s name under Rule 1.2(a). The referee also found that Grigsby's prior discipline, the fact that the misconduct occurred while Grigsby was suspended, that Grigsby was experienced in criminal law,
7

Rule 1.16(d), Minn. R. Prof. Conduct, provides that "[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests." 5

and the similarity to Grigsby's previous dishonest misconduct were aggravating factors. The fact that J.R. suffered no harm and, in fact, won his appeal, was a mitigating factor. The referee concluded that: (1) completing and filing the brief while suspended constituted the practice of law under Minn. Stat.

Download A11-976, In re Petition for Disciplinary Action against Stephen Vincent Grigsby,

Minnesota Law