In re Grigsby

• Decision Date: 11 July 2012
• Docket Number: No. A11–0976.,A11–0976.
• Citation: 815 N.W.2d 836
• Parties: In re Petition for DISCIPLINARY ACTION AGAINST Stephen Vincent GRIGSBY, a Minnesota Attorney, Registration No. 291973.
• Court: Minnesota Supreme Court

815 N.W.2d 836

In re Petition for DISCIPLINARY ACTION AGAINST Stephen Vincent GRIGSBY, a Minnesota Attorney, Registration No. 291973.

No. A11–0976.

Supreme Court of Minnesota.

July 11, 2012.

Syllabus by the Court

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.

Martin A. Cole, Director, Robin J. Crabb, Assistant Director, Office of Lawyers Professional Responsibility, Saint Paul, MN, for petitioner.

Stephen Vincent Grigsby, Fairbanks, AK, pro se.

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 violated Rules 1.2(a),¹3.3(a)(1), ²4.1,³8.4(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 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 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 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, 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. § 481.02 (2010), and therefore Grigsby violated Rule 5.5(a), Minn. R. Prof. Conduct; (2) signing J.R.'s name to the brief and indicating that J.R. was pro se were false statements to the court of appeals made with the intent to conceal Grigsby's participation in the appeal from the court and opposing counsel, in violation of Rules 3.3(a)(1), 4.1, and 8.4(c) and (d); and (3) signing J.R.'s name and filing the brief without authorization violated Rule 1.2(a), Minn. R. Prof. Conduct. The referee recommended that this misconduct warranted an extension of Grigsby's suspension for a minimum of 9 months and affirmatively recommended that Grigsby petition for reinstatement.⁸ Grigsby appealed and ordered a transcript.

I.

On appeal, Grigsby makes essentially three arguments to justify his conduct and avoid discipline. First, he argues that writing and filing J.R.'s appellate brief while suspended was not misconduct because under Minn. R. Prof. Conduct 1.16(d), he had a duty to protect the interests of J.R., his former client. Second, he argues that signing J.R.'s name and indicating that J.R. was pro se was not misconduct because he had J.R.'s implied authorization to do so. Third, Grigsby contends that because his conduct was justified, the referee's conclusion that he violated several professional conduct rules was clearly erroneous. We disagree.

A.

Grigsby urges us to interpret Minn. R. Prof. Conduct 1.16(d), to provide a limited defense or justification for practicing law while suspended. The referee rejected Grigsby's proposed interpretation.⁹ The interpretation of the Minnesota Rules of Professional Conduct is a question of law that we review de novo. In re Ulanowski, 800 N.W.2d 785, 793 (Minn.2011).

1.

Minnesota Rule of Professional Conduct 1.16(d), provides that, “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests.” Grigsby argues that Rule 1.16(d) may sometimes “impose[ ]a minimal obligation to continue the practice of law” on suspended lawyers to the extent necessary to protect a client's interests.

After making an unsuccessful attempt to find replacement counsel, Grigsby contends that an attorney in his situation had only three options. First, Grigsby argues that he could have simply abandoned J.R., which would have violated Rule 1.16(d). Second, he could have sent J.R. the file. But Grigsby contends that, because he believed that J.R. “would have not understood his predicament [and] would have failed to submit a brief in time,” sending J.R. the file close to the filing deadline would have also violated Rule 1.16(d). Third, Grigsby could have done what he did—submit a pro se brief for J.R. Therefore, according to Grigsby, even if he practiced law while suspended, doing so was justified because any action he could have taken would have violated the Rules of...