ATTORNEY GRIEV. COMM'N OF MARYLAND v. Kemp

BELL, Judge. Bar Counsel, on behalf of the Attorney Grievance Commission, acting pursuant to Maryland Rule BV9., filed a petition alleging that Versteal D. Kemp (respondent), a member of the ³ Maryland Bar since September 11, 1974, violated Rules 1.1 1 and 1.3 2 of the Rules of Professional Conduct during his representation of Reverend Franklin Pollard and the Board of Trustees of Uplift Baptist Church in their effort to eject the Board of Trustees of Mount Victory Church from the former’s premises. Specifically, the violations reverberated from the respondent’s failure properly to execute and, hence, obtain an order of default pursuant to Maryland Rule 2-613, against some of the defendants. Pursuant to Maryland Rule BV9.b., we referred the matter to Judge William B. Spellbring, Jr., of the Circuit Court for Prince George’s County for hearing.

Judge Spellbring found that the charged violation of Rule 1.3 had not been sustained and no exceptions have been noted. He also concluded, on the basis of the cumulative errors the respondent made while attempting to obtain an order of default, that the respondent failed to provide competent representation to his clients, in violation of Rule 1.1. I. Having agreed to represent Reverend Pollard and the Board of Trustees of Uplift Baptist Church in ejectment proceedings, the respondent filed, in the Circuit Court for Prince George’s County, a Complaint-Action of Ejectment (T 40) and Request for Injunction on April 19, 1990. Named as defendants in the action were George Gray, Lawrence Green, 3 James Richardson, Willie Howerton, Board of Trustees of Mount Victory Church.

The Complaint alleged that the Uplift Baptist Church, a non-profit religious corporation, owned the premises which were the subject of the proceedings; that the defendants ejected the plaintiffs from their “rightful” use of ⁴ the church and its property; that the named defendant and “the Board of Trustees and members of Mount Victory Church” were wrongfully using and destroying the church premises; and that they continue to occupy the premises despite repeatedly being ordered to remove themselves. Both compensatory and punitive damages were prayed. The respondent effected service, by private process, on the defendants Willie Howerton, James Richardson, George Gray and, although the return does not reflect on whom service was made, on the Board of Trustees of Mount Victory Church. He was unable to serve the defendant Lawrence Green.

No timely answer having been filed to the complaint, the respondent sought to obtain a default judgment against the defendants. His efforts, which spanned the period from August 1,1990 through January 28,1991, were unsuccessful. On August 1, 1990, the respondent filed a Motion for Default Judgement against all defendants, apparently including Lawrence Green, who had not been served. Although each defendant was named in the motion’s caption, the motion did not state the last known address of any.

Nor was the motion supported by a military service affidavit, as required by Section 200 of the Soldiers’ and Sailors’ Relief Act of 1940, 50 U.S.C.App. § 520 (1990, 1994 cum.supp.). 4 The latter deficiency was called to the respondent’s attention by Judge Salmon by memorandum dated August 8, 1990. Judge Salmon also advised the respondent that his motion was more appropriately entitled “Order of Default,” pursuant to Maryland Rule 2-613(a). He did not bring to the respondent’s attention the former deficiency—the failure of the motion to ⁵ state the last known address of each defendant against whom default was sought. See Maryland Rule 2-613(a).

Reverend Pollard executed military service affidavits for the Board of Trustees and for each of the individual members of the board. They were filed with the court on August 30,1990. In each affidavit, Reverend Pollard “... made oath in due form of law that he (she) knows the defendant herein and that to the best of his (her) information, knowledge and belief ... (1) said defendant is not in the military service of the United States (2) said defendant is not in the military service of any nation allied with the United States (3) said defendant has not been ordered to report for induction under the Selective Training Act of 1940 as amended (4) said defendant is not a member of the enlisted Reserve Corps who has been ordered to report for military service (5) said defendant is ...” The last paragraph of each affidavit, except that of George Gray, was left blank. 5 The file was presented to Judge Loveless, who, on September 11, 1990, noted, as to the defendant Board of Trustees, that “there is no indication as to who constitutes the Board of Trustees and who was served in that respect.” He required “a new proposed order naming the four individuals who were served.” The respondent responded by filing with the court, on September 17, 1990, a revised order of default, which deleted the Board of Trustees as a defendant and named only the individual defendants.

On September 26,1990, the court, this time per Judge Platt, identified other deficiencies: the order sought default as to all ⁶ defendants, including Green, who had not been served, and the request for order of default did not state the last known addresses of the defendants as to whom default judgments were sought. As to the latter, Judge Platt indicated that “[a] supplement to the Petition will be sufficient.” The respondent filed a Supplement to Motion of Default Judgement on December 21, 1990. In it were stated the addresses at which the defendants George Gray, James Richardson, and Willie Howerton were served. 6 Judge Spellbring found as a fact that the Supplement to Motion of Default Judgment gave the last known addresses of the defendants who were served. In the proposed order of default, filed the same day, the only defendants’ names, and so, as to whom the order was sought, were those referred to in the Supplement; the name of the defendant Lawrence Green was not included in the proposed order.

The file was next reviewed by Judge Ahalt. On January 3, 1991, in his Memorandum of Court, Judge Ahalt stated: Motion for Order of Default cannot be granted because name of defendant does not appear in the body of the Military Affidavit no evidence of service on Lawrence Green and Supplement to Motion does not contain lást known address of all defendants. Although the respondent caused new military affidavits to be filed, they were, as to all defendants except George Gray, in all respects, identical to those that prompted the court’s memorandum, that is, they left paragraph 5 blank. The respondent having been discharged as counsel for Pollard and the Board of Trustees of Uplift Baptist Church shortly thereafter, the record does not reflect any further activity with respect to the Order of Default.

Curiously, on November 5, 1991, the respondent, though discharged, obtained an extension of time for Uplift Baptist Church to answer the Mount Victory Baptist Church’s counter-claim, when the trial court ⁷ granted the Motion To Extend Time, which he filed. 7 In February, 1992, with new counsel now representing Uplift, the case was settled. Viewing the issue as “whether the ultimate failure to obtain the Order of Default as the result of the identified failures amounts to incompetence or are trivial or inconsequential errors,” the hearing judge, as we have seen, concluded that the respondent’s cumulative failures constituted the former. The “identified failures” to which the hearing judge referred were those that he found, including: “the initial failure to file Military Affidavits, the failure to include within the body of the Order of Default the name of the person against whom the Order would be entered, the failure to include the last known address of the Defendant against whom the Order of Default is sought, and the failure to include the name of the Defendant in the body of the Military Affidavit for that particular Defendant.” In support of his conclusion, the hearing judge reasoned: A cursory reading of Rule 2-613 of the Maryland Rules of Civil Procedure and the cross reference following the rule, would inform a practitioner that compliance with the Soldiers’ and Sailors’ Relief Act of 1940 as well as informing the Court of the last known address of the Defendant against whom an Order of Default is sought are specific requirements placed on the attorney who seeks an Order of Default for his client. Including the name of the defendant against whom an Order of Default is sought in both the body of the Order of Default as well as the body of the Military Affidavit is necessary when more than one Defendant is named in a lawsuit and relief is sought against some, but not all, of those Defendants by Order of Default. ⁸ II.

The respondent excepted to the hearing court’s Findings of Fact and Conclusions of Law. He set forth his reasons in Respondent’s Memorandum of Law in Support of Exception, in which he argued both that his pleadings were sufficient and that the facts did not establish violation of Rule 1.1. As to the former, apparently conceding the deficiency identified by Judge Salmon, the respondent argues that an Order of Default could have issued when he responded to Judge Loveless’s Memorandum by dropping the Board of Trustees as a party against whom default judgment was sought. Second, he asserts, Judge Platt’s observation that the “file does not reflect service as to all defendants whereas the terms of the Order grant[] judgment against all defendants,” was adequately answered by the court file which reflected service on three of the four defendants.

Therefore, the respondent urges that default could have been issued against the three that had been served, there being no basis for believing that their addresses, also in the court file, had changed since initiation of the case some five months earlier. Finally, the respondent contends that Judge Ahalt’s criticisms were entirely unwarranted since the caption on the proposed order clearly indicated he was proceeding only against three of the individual defendants, for each of which the Supplement to the Motion for Order of Default provided recent addresses. Thus, the respondent concludes that his pleadings “were sufficient to identify the parties against whom he sought an Order of Default, especially in light of modern day pleading rules and principles that require courts to ignore technical defects in pleadings when inconsistent with justice and the substantive rights of parties.” Acknowledging that he may have made “a technical mistake or mistakes,” the respondent maintains that he did not violate Rule 1.1. Thus, while the respondent admits to being careless, that carelessness does not, he submits, amount to incompetence of which the Rules of Professional Conduct should take cognizance.

He points out that his conduct does not even ⁹ approach that at issue in Atty. Griev. Comm. v. Brown, 308 Md. 219 , 517 A.2d 1111 (1986), the errors in that case being significantly more serious than his technical pleading mistakes. The respondent also relies upon cases from other jurisdictions which, he suggests, support a distinction being drawn between a pattern of mistakes demonstrating incompetence and technical mistakes amounting to no more than carelessness.

See, e.g., The Florida Bar v. Neale, 384 So.2d 1264 (Fla.1980); In Re Mason, 203 S.W.2d 750 (Mo.App.1947). State Ex Rel. Nebraska State Bar Association v. Pinkett, 157 Neb. 509 , 60 N.W.2d 641 (1953); In Re Gelzer, 31 N.J. 542 , 158 A.2d 331 (1960); In Conduct of Gygi, 273 Or. 443 , 541 P.2d 1392 (1975).

III

To be sustained, the findings of fact of a hearing court must be supported by clear and convincing evidence. Rule BVlO.d. Thus, the respondent’s exceptions can be sustained only if, upon an independent review of the record, we conclude that the hearing court’s finding that the respondent failed to provide competent representation was not supported by clear and convincing evidence. Atty.

Griev. Comm. v. Rohrback, 323 Md. 79, 93-94 , 591 A.2d 488, 495 (1991); Atty. Griev. Comm. v. Kerpelman, 288 Md. 341, 475 , 420 A.2d 940, 956 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981).

An attorney will be held to the ethical and performance standards of his or her profession. Atty. Griev. Comm. v. Martin, 308 Md. 272 , 518 A.2d 1050 (1987).

The quality of a lawyer’s representation is measured by the degree of legal knowledge, skill, thoroughness, and preparation the lawyer brings to the representation. See Rule 1.1. Whether the representation the lawyer gives is incompetent or is merely careless or negligent depends upon what reasonably is necessary in the circumstances, i.e. the facts and circumstances of the particular case. Moreover, in determining whether a ¹⁰ lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include: the relative complexity of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

Rule 1.1, comment, at 477. Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners, including adequate preparation in the circumstances. Rule 1.1. In Atty.

Griev. Comm. v. Keister, 327 Md. 56, 71 , 607 A.2d 909, 916 (1992), we noted that the adequacy of the lawyer’s representation of the client, not simply the result, is the appropriate focus of the inquiry. In Keister , the Rule 1.1 violation charged flowed from Bar Counsel’s allegations concerning that respondent’s “ ‘dependency on alcohol, cocaine, and possibly other drugs, during the time period set forth in this petition.’ ” Id. at 59 , 607 A.2d at 910 . Thus, in that case, the incompetence at issue referred to the lawyer “being ‘unable to render adequate legal service by reason of mental or physical illness or infirmity, or addiction to or dependence upon an intoxicant or drug,”’ Maryland Riñe BV1.L, rather than misconduct.

In this case, the respondent is charged with misconduct, specifically, that he, by “an act or omission,” provided incompetent representation to a client, “which violates the disciplinary rules of the Code of Professional Responsibility as adopted by Rule 1230.” Maryland Rule BVl.k. As the parties recognize, trivial errors, which, when viewed individually, would not sustain a finding of incompetent representation, when viewed collectively or cumulatively can have that effect. Brown, 308 Md. at 232 , 517 A.2d at 1117 . In Brown , the hearing court found that, in handling an estate matter, a specialized area of the law, the lawyer violated D.R. ¹¹ Rule 6-101(A)(l)(2)(3), Failing To Act Competently. 8 The hearing court offered seven acts of omission or commission which formed the predicate for its determination that the lawyer violated the competency rule.

They were: “[1] [H]is failure to segregate assets due Mr. Hahn and the trust under Mrs. Hahn’s will; [2] his failure to discuss with the substitute trustee under Mrs. Hahn’s will his duties as such; [3] his omissions and errors in the preparation of Mrs. Hahn’s First and Final Account; [4] his detention of the trust assets over an extended period of time; [5] his failure to execute and record an appropriate deed to the legatees of Mrs. Hahn’s farm; [6] his failure to see the prompt termination of Mr. Hahn’s guardianship following his death; and [7] his numerous erroneous inclusions and entries on Walter Hahn’s estate tax return.” 308 Md. at 229, 517 A.2d at 1115-16 . See also Atty. Griev. Comm. v. Kramer, 325 Md. 39 , 599 A.2d 100 (1991); Atty.

Griev. Comm. v. Gallagher, 306 Md. 107, 113-14 , 507 A.2d 625, 627-28 (1986); Atty. Griev. Comm. v. McCloskey, 306 Md. 677, 683-84, 685 , 511 A.2d 56, 60-61 (1986) (conduct involving misrepresentations about knowledge of the law and failure to research law of California); Atty.

Griev. Comm. v. Sinclair, 302 Md. 581, 589 , 490 A.2d 236, 241 (1985) (failure to contact witnesses except one hostile to his client’s claim, and adequately to investigate the facts giving rise to his client’s injuries); Atty. Griev. Comm. v. Sheehy, 298 Md. 371, 378 , 470 A.2d 341, 344 (1984) (inadequate preparation of client’s case— ¹² naming an obviously improper party when the names of the proper defendants were readily