                                                              2019 WI 35

                  SUPREME COURT          OF   WISCONSIN
CASE NO.:               2018AP2460-D
COMPLETE TITLE:         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


OPINION FILED:          April 16, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
   COURT:
   COUNTY:
   JUDGE:

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:
                                                                              2019 WI 35
                                                                      NOTICE
                                                        This opinion is subject to further
                                                        editing and modification.   The final
                                                        version will appear in the bound
                                                        volume of the official reports.
No.     2018AP2460-D


STATE OF WISCONSIN                                 :             IN SUPREME COURT

In the Matter of Disciplinary Proceedings
Against Gary E. Grass, Attorney at Law:

Office of Lawyer Regulation,                                                 FILED
            Complainant,                                              APR 16, 2019
       v.                                                                Sheila T. Reiff
                                                                      Clerk of Supreme Court
Gary E. Grass,

            Respondent.




       ATTORNEY     disciplinary          proceeding.           Attorney's         license
suspended.


       ¶1   PER CURIAM.           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
                                                                              No.       2018AP2460-D



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.


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     ¶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
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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 22.03(6),2
      enforceable via SCR 20:8.4(h).3
                                     Client M.E.

      1     SCR 20:1.5(f) provides:

           Except as provided in SCR 20:1.5(g), unearned
      fees and funds advanced by a client or 3rd party for
      payment of fees shall be held in trust until earned by
      the lawyer, and withdrawn pursuant to SCR 20:1.5(h).
      Funds advanced by a client or 3rd party for payment of
      costs shall be held in trust until the costs are
      incurred.
        2
       SCR  22.03(6)   provides:     "In  the   course  of   the
investigation, the respondent's wilful 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."
        3
       SCR 20:8.4(h) provides:   "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 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6),
or SCR 22.04(1)."


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       ¶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.


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     ¶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

     4 SCR 20:1.3 provides: "A lawyer shall act with reasonable
diligence and promptness in representing a client."
     5   SCR 22.26(1) provides:

          (1) 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.

          (c) Promptly provide written notification to the
     court or administrative agency and the attorney for
     each party in a matter pending before a court or
     administrative agency 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. The notice shall identify
     the successor attorney of the attorney's client or, if
     there is none at the time notice is given, shall state
     the client's place of residence.

            (d) Within the first 15 days after the effective
     date     of   suspension   or  revocation,   make    all
                                                       (continued)
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                                                No.   2018AP2460-D


    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).



    arrangements for the temporary or permanent closing or
    winding up of the attorney's practice. The attorney
    may assist in having others take over clients' work in
    progress.

         (e) Within 25 days after the effective date of
    suspension or revocation, file with the director an
    affidavit showing all of the following:

         (i) Full compliance with the provisions of the
    suspension or revocation order and with the rules and
    procedures regarding the closing of the attorney's
    practice.

         (ii) A list of all jurisdictions, including
    state, federal and administrative bodies, before which
    the attorney is admitted to practice.

         (iii) A list of clients in all pending matters
    and a list of all matters pending before any court or
    administrative agency, together with the case number
    of each matter.

         (f) Maintain records of the various steps taken
    under this rule in order that, in any subsequent
    proceeding instituted by or against the attorney,
    proof of compliance with the rule and with the
    suspension or revocation order is available.
    6  SCR 20:8.4(f) provides:  "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."
    7   SCR 22.03(2) provides:

         Upon commencing an investigation, the director
    shall notify the respondent of the matter being
    investigated unless in the opinion of the director the
    investigation of the matter requires otherwise.    The
                                                    (continued)
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                                       Client D.P.

      ¶17    On    or   around    August        31,    2016,      D.P.,      through    his
grandmother, hired Attorney Grass as postconviction counsel in a
Milwaukee County criminal matter.                 D.P. wanted Attorney Grass to
appeal his conviction or seek a reduction of his sentence or a
new trial.
      ¶18    On    September     8,   2016,       Attorney        Grass      appeared       on
D.P.'s behalf in the criminal matter in the court of appeals
district I.        On October 18, 2016, Attorney Grass filed a motion
for   an    extension    of    time   to    file       a    notice    of     appeal    or    a
postconviction motion.           The court of appeals granted the motion
and extended the deadline to November 17, 2016.

      ¶19    Between     October      18,       2016       and   February      14,     2018,
Attorney Grass filed 14 motions for an extension of time to file
a notice of appeal or a postconviction motion.                             The court of
appeals granted all of the requests but stated, "it appears that
counsel has not made a meaningful assessment of his ability to
complete the postconviction motion within the requested extended
deadline.         Multiple    requests      for    extension         which    counsel       is
unable to meet are burdensome to the court."

      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.      The director may
      allow additional time to respond.     Following receipt
      of the response, the director may conduct further
      investigation and may compel the respondent to answer
      questions,   furnish   documents,   and   present   any
      information deemed relevant to the investigation.


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      ¶20    Attorney Grass failed to file a notice of appeal or a
postconviction motion by the last extended deadline.                 He also
failed to communicate with D.P. and failed to return phone calls
from D.P.'s family.
      ¶21    In May 2018, D.P. filed a pro se request for a hearing
to   discharge    Attorney   Grass   as   his   counsel   and    appoint   new
appellate counsel.      The court of appeals denied D.P.'s request
and directed him to address his complaint against Attorney Grass
to the OLR and/or to the State Public Defender's office.                    On
June 11, 2018, the public defender's office notified D.P. that
Attorney Grass' license had been suspended.
      ¶22    D.P. filed a grievance with the OLR against Attorney

Grass.      Attorney Grass failed to file a response.
      ¶23    By virtue of entering into the stipulation, Attorney
Grass admitted the following counts of misconduct with respect
to his representation of D.P.:

      Count 6:   By failing to advance D.P.'s interests in
      the matter of an appeal or postconviction motion,
      including failing to file a notice of appeal or
      postconviction motion in D.P.'s matter by the April 5,
      2018 deadline, Attorney Grass violated SCR 20:1.3.

      Count 7:    By failing to communicate with D.P. or
      D.P.'s family from March 2017 until August 16, 2017
      regarding the status of his case, Attorney Grass
      violated SCR 20:1.4(a)(3).8

      Count 8:   By failing to notify D.P. of the May 22,
      2018 suspension of his law license and his consequent


      8SCR 20:1.4(a)(3) provides:     "A lawyer shall keep                 the
client reasonably informed about the status of the matter."


                                     9
                                                                        No.       2018AP2460-D


      inability to practice law, Attorney Grass                             violated
      SCR 22.26(1), enforceable via SCR 20:8.4(f).

      Count 9:   By willfully failing to timely respond to
      the OLR's July 26, 2018 letter seeking a response to
      D.P.'s grievance, Attorney Grass violated SCR 22.03(2)
      and SCR 22.03(6), enforceable via SCR 20:8.4(h).
                                           Client V.C.
      ¶24    On October 29, 2016, V.C. hired Attorney Grass as his
appellate      counsel    in    a    criminal       matter      in    Milwaukee       County

regarding his conviction and conditions of confinement.                              He also
hired    Attorney      Grass    to       respond    to    potential         harassment      by
V.C.'s      alleged    co-actor.           Attorney       Grass      told     the    OLR     he
received $1,000 in fees from V.C. for four hours of work with no
expenses.      Attorney Grass also told the OLR he agreed to provide
six hours of work without charge to V.C., but had performed over
ten hours of work on the case.                    Attorney Grass told the OLR he
was unable to locate his written fee agreement with V.C.

      ¶25    On December 5, 2016, Attorney Grass filed a motion to
request transcripts and the circuit court record.                             The court of
appeals      granted     the   motion       and     established         a     deadline      of
December 23, 2016 to obtain the transcripts and circuit court
record.      Attorney Grass filed a second motion to extend the time
to   request      transcripts       on    December       27,   2016.        The     court    of
appeals granted the motion and extended the deadline to January
6, 2017.
      ¶26    On    November     19,      2017,     Attorney     Grass       wrote    to     the
court of appeals saying that he had not ordered the transcripts
and failed to realize that V.C. was indigent and was entitled to
a waiver of the transcript fees.

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                                                                No.   2018AP2460-D



      ¶27   In the meantime, on August 23, 2017, V.C. had filed a
grievance with the OLR against Attorney Grass.                  Attorney Grass
failed to respond to the OLR's request for information about the
grievance.
      ¶28   On December 1, 2017, the court of appeals ordered that
the deadline for requesting copies of the transcripts would be
January 29, 2018 and directed Attorney Grass to file a status
report no later than January 2, 2018.               Attorney Grass failed to
meet both deadlines.
      ¶29   Attorney Grass failed to respond to the OLR's repeated
requests    for   information      about     the   grievance.     This   court's
November 13, 2018 order temporarily suspending Attorney Grass'

law license was based in part on his failure to respond to the
OLR's investigation of V.C.'s grievance.
      ¶30   By virtue of entering into the stipulation, Attorney
Grass admitted the following counts of misconduct with respect
to his representation of V.C.:

      Count 10: By failing to obtain transcripts or seek a
      waiver of court reporter's fees or otherwise take
      steps to advance V.C.'s case in a timely manner,
      Attorney Grass violated SCR 20:1.3.

      Count 11:     By willfully failing to respond to the
      OLR's request for additional information relating to
      V.C.'s     grievance,    Attorney     Grass  violated
      SCR 22.03(6), enforceable via SCR 20:8.4(h).
                                     Client S.B.

      ¶31   On or about May 29, 2017, S.B. hired Attorney Grass as
his appellate counsel in a criminal matter in Milwaukee County
to   evaluate     the   prospect   of   filing     a   postconviction    motion.

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                                                                        No.    2018AP2460-D



Attorney Grass' written fee agreement with S.B. stated that work
would   be    performed       according    to   the     following        pay    schedule:
$250 per hour for the first four hours, $0 for the following six
hours, $100 per hour for the following ten hours, $50 per hour
for the following forty hours, and $20 per hour for any further
work until completion.                Attorney Grass agreed to provide S.B.
monthly      billing      statements     itemizing       the     work     performed      on
S.B.'s behalf.         S.B. paid Attorney Grass approximately $1,500.
     ¶32     On    June    1,   2017,    S.B.'s       previous    appellate       counsel
delivered S.B.'s appeal file to Attorney Grass and informed him
that the date for filing a notice of appeal or postconviction
motion was July 5, 2017.

     ¶33     In a      letter dated       December      6,   2017,      S.B.    wrote    to
Attorney Grass identifying issues he believed relevant to his
postconviction motion.            Attorney Grass failed to respond to the
letter.
     ¶34     Attorney       Grass      requested,      and     was     granted,      three
extensions        of   time     for    filing     a    notice     of     appeal     or    a

postconviction motion on S.B.'s behalf.                   He never filed either a
notice of appeal or a postconviction motion.
     ¶35     In a letter dated May 9, 2018, S.B. requested that the
public defender's office appoint new counsel for him.                            Attorney
Grass failed to notify S.B. of the May 22, 2018 suspension of
his law license.          S.B. learned about Attorney Grass' suspension
when he was copied on a letter from the public defender's office
to Attorney Grass, dated May 30, 2018.


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      ¶36   On May 22, 2018, S.B. filed a grievance with the OLR
against Attorney Grass.         Attorney Grass failed to respond to the
OLR's request for information about the grievance.
      ¶37   On July 3, 2018, S.B.'s prior appellate counsel, who
was still an attorney of record for S.B. in the Milwaukee case,
requested an extension of time for S.B. to file a postconviction
motion or a notice of appeal.           The court granted that request.
      ¶38   On July 6, 2018, Attorney Grass informed the court of
appeals, district I that his law license had been suspended.                 In
a letter dated August 8, 2018, Attorney Grass informed the OLR
and   the   clerk   of   this   court    that   he   was   unable   to   provide
responses to the OLR's requests for information and that he was

"in no present condition to practice."
      ¶39   By virtue of entering into the stipulation, Attorney
Grass admitted the following counts of misconduct with respect
to his representation of S.B.:

      Count 12:   By failing to advance S.B.'s interests in
      the matter of an appeal or postconviction motion,
      Attorney Grass violated SCR 20:1.3.

      Count 13:   By failing to notify S.B. of the May 22,
      2018 suspension of his law license and his consequent
      inability to practice law, Attorney Grass violated
      SCR 22.26(1), enforceable via SCR 20:8.4(f).

      Count 14:   By willfully failing to timely respond to
      the OLR's June 25, 2018 letter seeking a response to
      S.B.'s grievance, Attorney Grass violated SCR 22.03(2)
      and SCR 22.03(6), enforceable via SCR 20:8.4(h).
      ¶40   The parties' stipulation states that the terms of the
stipulation were not bargained for or negotiated between the
parties.     Attorney Grass avers that he admits the facts of the

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                                                                              No.     2018AP2460-D



misconduct    alleged          by   the       OLR    and   agrees        to    the     level    of
discipline sought by the OLR, a 60-day suspension of his license
to practice law in Wisconsin.                   Attorney Grass represents that he
fully understands the misconduct allegations, fully understands
the ramifications should the court impose the stipulated level
of    discipline,     fully         understands        his       right    to        contest    the
matter, fully understands his right to consult with and retain
counsel, and states that his entry into the stipulation is made
knowingly and voluntarily.
      ¶41   The      OLR       filed      a     memorandum        in     support         of    the
stipulation, citing a number of cases that it claims supports
its    request    for      a    60-day        suspension:          In     re        Disciplinary

Proceedings      Against       Bartz,         2015   WI    61,    362    Wis. 2d 752,          864
N.W.2d 881    (60-day          suspension        for      five    counts       of    misconduct
related to one client matter; attorney had one prior private
reprimand); In re Disciplinary Proceedings Against Briggs, 2014
WI 119, 358 Wis. 2d 493, 861 N.W.2d 528 (90-day suspension for
12 counts of misconduct related to two client matters; attorney
had    no    prior      disciplinary             history);        In      re        Disciplinary
Proceedings Against Kasprowicz, 2004 WI 151, 277 Wis. 2d 96, 690
N.W.2d 13 (public reprimand for 16 counts of misconduct related
to    six   client      matters;          referee         found    multiple          mitigating
factors, including medical and emotional problems found to have
a causal connection with the misconduct at issue.)
      ¶42   Although       no       two   attorney         disciplinary             matters    are
precisely the same, we find that the misconduct at issue here is
somewhat analogous to that at issue in Bartz.                                  While Attorney
                                                14
                                                                      No.     2018AP2460-D



Bartz had a prior private reprimand and Attorney Grass has no
disciplinary     history,       Attorney        Grass    has    admitted      nine      more
counts of misconduct than was at issue in Bartz.                         After careful

review,    we    accept       the     stipulation       and     impose      the   jointly
requested sanction of a 60-day suspension of Attorney Grass' law
license.     Because Attorney Grass entered into a comprehensive
stipulation, thus obviating the need for the appointment of a
referee and a full disciplinary proceeding, we impose no costs
in this matter.
     ¶43   IT IS ORDERED that the license of Gary E. Grass to
practice law in Wisconsin is suspended for a period of 60 days,
effective the date of this order.

     ¶44   IT IS FURTHER ORDERED that, to the extent he has not
already done so, Gary E. Grass shall comply with the provisions
of SCR 22.26 concerning the duties of a person whose license to
practice law in Wisconsin has been suspended.
     ¶45   IT        IS   FURTHER      ORDERED      that       compliance     with      all
conditions of this decision is required for reinstatement.                               See
SCR 22.28(2).
     ¶46   IT        IS     FURTHER     ORDERED         that    the      administrative
suspension      of    Gary     E.     Grass'    license        to   practice      law     in
Wisconsin, due to his failure to pay mandatory bar dues, for
failure    to   file      Office      of   Lawyer       Regulation       trust    account
certification,        and     for     noncompliance        with     continuing       legal
education requirements, will remain in effect until each reason
for the administrative suspension has been rectified pursuant to
SCR 22.28(1).
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     ¶47   IT   IS   FURTHER   ORDERED   that   the   November    13,   2018
temporary suspension of Gary E. Grass' license to practice law
in Wisconsin, due to his willful failure to cooperate with the
Office of Lawyer Regulation's investigation in this matter, is
lifted.
     ¶48   IT IS FURTHER ORDERED that no costs are imposed on
Gary E. Grass.




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    No.   2018AP2460-D




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