ATTORNEY GRIEVANCE COM'N OF MARYLAND v. Tolar

PER CURIAM. The Attorney Grievance Commission of Maryland (the “Commission”), the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-709, filed a Petition for Disciplinary Action against Jane K. Tolar, the respondent, alleging that she did engage in misconduct. In the Petition, the respondent was charged with violating Rules 1.3, Diligence, 1 1.4, Communication, 2 and 8.1, Bar Admission and Disciplinary Matters, 3 of the Maryland Lawyers’ Rules of Professional Conduct. The Petition was referred, pursuant to Maryland Rule 16-711(a), 4 ⁵⁷² to the Hon.

Donald C. Davis, of the Circuit Court for Wicomi-co County, for hearing and to make finding of fact and conclusions of law. Following a hearing, the hearing court, as required, filed Findings of Fact, as follows: “FINDINGS OF FACT “Based upon the testimony and exhibits 1 produced at the hearing, the Court finds the following to be established by clear and convincing evidence: “1. Jane K. Tolar was admitted to the Maryland Bar in 1975. She has practiced law in Talbot County, Maryland, since 1977 and has been in solo litigation since 1988. “2.

Linda Hallowell retained Respondent to represent her in a divorce action initiated by Mr. Hallowell in the Circuit Court for Dorchester County, Maryland. The terms under which Respondent was retained were incorporated in a retainer agreement dated August 2, 193 ... (the “Retainer Agreement”). “3. Under the terms of the Retainer Agreement, Respondent was to be compensated for services rendered to Mrs. Hallowell at the rate of $125.00 per hour and Respondent’s fee was to be paid “from [Mrs. Hallo-well’s] marital settlement or the proceeds of a monetary award.” The Retainer Agreement further provided as follows: ‘Client agrees that statements for services rendered shall be paid within thirty (30) days after Client receives the marital settlement or monetary award, except as agreed ⁵⁷³ to between the parties, and that any failure to pay statements within such period may be construed by Attorney as a discharge of it from its employment hereunder, in which event Attorney may move to have its appearance withdrawn from any court action then pending.

Such withdrawal shall not relieve Client from the obligation to pay any sums due and owing for services previously rendered pursuant to this Agreement.’ “4. The marital property of the Hallowells included interests of Mr. Hallowell in retirement plans at Continental Can Company (“Continental”) 2 and Fluor Corporation (‘Fluor’). “5. On November 22, 1994, the Hallowell divorce case was called for trial in the Circuit Court for Dorchester County, Maryland. The parties announced on the record the terms of a settlement agreement with respect to the case and testimony was taken in support of the claim of Mr. Hallowell for divorce.

Counsel were to submit an order for signature by the Court. “6. Despite the settlement announced on the record, the parties continued to negotiate terms of their settlement for the next five months. A primary problem was that, because, Mr. Hallowell had utilized a substantial portion of marital property in his name because of a major injury he had received, the cash which Mrs. Hallowell was to receive was apparently substantially less than she had anticipated. Consequently, if Mrs. Hallowell satisfied her obligation to Respondent for attorney’s fees at the time of the marital settlement as provided in the Retainer Agreement, very little cash would be left for Mrs. Hallowell’s personal use. ⁵⁷⁴ “7.

As a result of negotiations, Mr. Hallowell agreed to pay $1,250.00 toward Respondent’s fee. In addition, Respondent reduced her fees to Mrs. Hallowell by $817.50 3 , which reduced the fee balance to $1,000.00. “8. Respondent agreed to waive payment of the balance at the time of settlement and to accept payment of the balance at the rate of $100.00 per month from any distributions which Mrs. Hallowell received from Mr. Hallowell’s retirement plan at Continental. “9. An amendment to the Retainer Agreement incorporating this revision to the fee payment arrangement was prepared and signed by Mrs. Hallowell and Respondent on or about May 3, 1995, (the “first amendment”) ....

On the same date, Mrs. Hallowell executed on Assignment Of Proceeds ... in favor of Respondent, related to any distribution to Mrs. Hal-lowell through the class action litigation against Continental. The Assignment provided that: ‘[Mrs. Hallowell] understands that this Agreement Of Proceeds does not relieve her of the responsibility of making any other payment that may be due on the above-described account according to her agreement with [Respondent].’ “10. By the end of May, any remaining issues had been resolved between the Hallowells. Counsel submitted an order in the divorce case which was signed in the Circuit Court for Dorchester County on June 21, 1995 (the “divorce decree”).

Under the divorce decree, Mr. Hallowell agreed to pay $1,250.00 toward Respondent’s attorney’s fee for representing Mrs. Hallowell and Mrs. Hallowell received $5,000.00, a car, and an interest in Mr. Hallowell’s interests in the Continental and Fluor retirement plans. The divorce decree purported to serve as a Qualified Domestic Relations ⁵⁷⁵ Order with respect to both the Continental and Fluor retirement plans. “11. Respondent did not submit the form of the divorce decree to Continental or Fluor in advance of it being filed with the Court to determine if the companies would accept it as a Qualified Domestic Relations Order. She believed the companies would accept it as a Qualified Domestic Relations Order.

She believed that they would do so. “12. On June 23, 1995, two days following the Court’s entry of the divorce decree, for the first time Respondent sent copies of the divorce decree to both Continental and Fluor.... “13. Receiving no response from Fluor, Respondent sent a follow-up inquiry to Fluor on July 19, 1995.... On July 20, 1995, Respondent received a letter from Fluor dated July 14, 1995 ... which said that the divorce decree was not acceptable to Fluor as a Qualified Domestic Relations Order and which enclosed a sample form for such an Order which would be acceptable. “14.

With respect to the Continental plan, Respondent believes that she talked to the special Master responsible for distributions who told her that the divorce decree was inadequate as a Qualified Domestic Relations Order. He was otherwise unhelpful. She states that she knew between her letter to the Master on June 23, 1995, and a follow-up letter to him on July 19, 1995, that he had a problem with the divorce decree serving as a Qualified Domestic Relations Order. However, she has no further recollection of the conversation.

She has no notes which relate to the conversation. “15. On July 19, 1995, she sent Continental’s Special Master a follow-up letter ..., but it was identical to the one sent to Fluor Corporation on the same date and did not reference the telephone conversation in which ⁵⁷⁶ he was alleged to have told her that the divorce decree was not acceptable as a Qualified Domestic Relations Order. “16. Prior to the complaint in this case being filed by Mrs. Hallowell with the Attorney Grievance Commission, Respondent took no further action with respect to securing Mrs. Hallowell’s interest in the Fluor or Continental retirement plans. “17. On July 19, 1995, she also mailed or delivered to Mrs. Hallowell a letter and new Assignment Of Proceeds Form....

The new Assignment Of Proceeds was identical to that which was signed with the first amendment on May 3, except that it assigned to Respondent Mrs. Hallowell’s distributions from Fluor Corporation. Mrs. Hallowell refused to sign it. Respondent explains that she sought the assignment of distributions from Fluor Corporation because she had concluded from the letter which she sent to the Special Master for Continental and an undocumented telephone conversation between them that it would be a ‘Herculean task’ to have Continental accept the divorce decree as a Qualified Domestic Relations Order. “18. Respondent testified that she intentionally took no further action after July 19, 1995, to secure Mrs. Hallowell’s interests in the Continental and Fluor retirement plans because Mrs. Hallowell refused to pay her for finalizing the Qualified Domestic Relations Orders to do so.

She alleges that between signing the first amendment on May 8, 1995, and the entry of the divorce decree on June 21, 1995, Mrs. Hallowell made it clear to Respondent that Mrs. Hallowell did not think she should have to pay for additional work to get the Qualified Domestic Relations Orders finalized and was adamant that she would not pay additional legal fees; and during the period between the signing of the decree on June 21 and August 1, 1995, (when Mrs. Hallowell temporarily moved to Connecticut) ⁵⁷⁷ Mrs. Hallowell continued to refuse to pay additional fees and Respondent told her that she would do no more work unless Mrs. Hallowell agreed orally to pay for the additional work. “19. Respondent acknowledges a conversation with Mrs. Hallowell in approximately December, 1995. Mrs. Hallowell said that Respondent acknowledged that the paperwork was on her desk and she would get to it as soon as she could. Respondent says that she told Mrs. Hallowell that the papers were on her desk and she would get them out if Mrs. Hallowell agreed to pay for the additional work.

Respondent further said that she would have continued with the work if the additional Assignment Of Proceeds relating to the Fluor distribution had been signed because, although it would not have been the acknowledgment she was looking for that Mrs. Hallowell would pay for additional work, “it would have given [Respondent] a stronger position”. “20. Mrs. Hallowell testified that the first amendment on May 3,1995, resolved any issues regarding legal fees and that there was no further conversation about legal fees after that date. She denied being told by Respondent that she would do additional work only if Mrs. Hallowell recognized her obligation to pay the existing $1,000.00 debt and for any additional work. She said the only conversations she remembers after the signing of the decree was in July when Respondent told her that it was taking a long time to get a response from Continental and asking her to sign the additional Assignment Of Proceeds relating to Fluor; and in December, 1995, when they had a chance encounter at which Respondent told Mrs. Hallowell that she had been busy, that the papers were on her desk, and that she would “get on it”. “21.

The Court finds as a matter of fact that there were conversations between Complainant and Respondent relating to the payment of fees which occurred prior ⁵⁷⁸ to the first amendment on May 3, 1995, and in the context of the manner and timing of payment for fees which had been incurred up to that time. However, the Court is not convinced that there were any discussions between the parties thereafter addressing the payment of fees for work which remained to be done following entry of the divorce decree, due perhaps to the fact that both Respondent and Mrs. Hallowell believed at the time the divorce decree was signed that the only thing which remained to be done was to mail copies of the divorce decree to Continental and Fluor. “22. Clearly Mrs. Hallowell was, and perhaps still is, confused as to her responsibility for attorney’s fees relating to any additional work related to the retirement plans. Mrs. Hallowell testified before the Inquiry panel and at this hearing in a contradictory manner, variously saying that future work would be at the hourly rate contained in the Retainer Agreement; the $1,000.00 balance on May 3 was to pay for getting the Qualified Domestic Relations Orders lodged with the two companies; and the $1,000.00 was for services rendered prior to May 3. “23.

Between the chance meeting with Respondent in December, 1995, and filing the complaint in this proceeding with the Attorney Grievance Commission in 1997, Mrs. Hallowell called Respondent about five times and visited her office twice to inquire as to the status of Respondent’s efforts to secure Mrs. Hallowell’s interests in the Continental and Fluor retirement plans. She also faxed Respondent a letter on September 18,1997, ... requesting action. Respondent’s file reflects phone message forms dated January 23, 1996, and June 18,1996, to Respondent.... “24. Respondent did not respond to any of the calls or visits, including the 1997 fax, and did nothing further on the case after July, 1995.

She did not take any action to withdraw from the case or to provide any ⁵⁷⁹ written notification to Mrs. Hallowell that she was doing no further work on the account, other than to send her periodic bills which reflected no work activity. Respondent said that she knew Mrs. Hallowell well enough to know, without talking with her, if the call was on a different matter or, as she assumed, that Mrs. Hallowell was calling to have her contribute ‘hours and hours and hours of legal work without payment.’ In hindsight, Respondent acknowledges that she should have responded to the contacts. “25. As of the date of the hearing before this Court, Mrs. Hallowell’s interest had not been secured in either of the retirement plans nor did she know what, if anything, she ever would receive. “26. Since Mrs. Hallowell’s complaint was filed with the Attorney Grievance Commission, Respondent and her counsel, with the approval of Bar Counsel and the consent of Mrs. Hallowell, have undertaken to obtain approval by Continental and Fluor of the divorce decree as a Qualified Domestic Relations Order.

An amendment to the divorce decree will be required to satisfy the companies’ requirements and Mr. Hallo-well is contesting the amendment. Respondent and her counsel are proceeding with due diligence in that regard. “27. Mrs. Hallowell’s complaint was filed with the Attorney Grievance Commission on November 17, 1997.... “28. A copy of the complaint was sent to the Respondent by Assistant Bar Counsel on November 18, 1997, requesting a response within 15 days.... “29.

Receiving no response, Assistant Bar Counsel sent a follow-up letter to Respondent on January 6, 1998,