Attorney Grievance Comm'n of Md. v. Hecht

Getty, J. This attorney discipline case involves an attorney who took on representation of a client but was then suspended from the practice of law due to an unrelated matter. While representing the client, the attorney failed to communicate to his client that he was suspended, made misrepresentations to the client about his suspension, continued to render legal assistance on behalf of the client, and made misrepresentations to Bar Counsel during the investigation. On February 23, 2017, the Attorney Grievance Commission of Maryland ("Bar Counsel") filed a Petition for Disciplinary or Remedial Action ("Petition") alleging that Ross D. Hecht ("Hecht") had violated the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"). 1 The Petition alleged that Hecht, during representation of Diana Lynn Crummitt ("Lynn Crummit"), had violated the following rules of the MLRPC: 1.1 (Competence); 1.2(a) (Scope of Representation); 1.3 (Diligence); 1.4(a); and (b) (Communication); 1.16(a) and (d) (Declining or Terminating Representation); 3.2 (Expediting Litigation); 3.3(a) (Candor Toward the Tribunal); 3.4(c) and (d) (Fairness to Opposing Party and Attorney); 4.1 (Truthfulness in Statements to Others); 5.5 (Unauthorized Practice of Law); 8.1(a) (Bar Admissions and Disciplinary Matters); and 8.4(a), (b), (c), and (d) (Misconduct). By Order dated March 1, 2017, we designated Judge John P. Davey ("the hearing judge") of the Circuit Court for Prince George's County to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law.

Md. Rule 19-722(a). The hearing took place on August 30 and 31, 2017 ("evidentiary hearing"). At the hearing, Bar Counsel introduced into evidence various documentary exhibits, including Hecht's correspondence with his client, Lynn Crummitt. Several witnesses, including Hecht and Lynn Crummitt, testified.

The hearing judge issued a memorandum opinion in which he made detailed findings of fact and recommended conclusions of law to this Court on October 25, 2017. In his recommended conclusions of law, the hearing judge concluded that Hecht violated MLRPC 1.1, 1.3, 1.4, 1.16(a) and (d), 3.2, 3.3, 3.4, 4.1, 5.5, 8.1(a), and 8.4(a), (b), and (c). Both parties filed exceptions to the hearing judge's findings of fact and recommended conclusions of law. Bar Counsel excepts "to the trial court's failure to conclude that [Hecht] ... violated Rules 8.1(a) and 8.4(c) during the course of the Bar Counsel's disciplinary investigation, and that the [Hecht's] conduct, taken as a whole, violated Rule 8.4(d)." Bar Counsel recommends that we disbar Hecht.

Hecht excepts extensively to the trial judge's factual findings as well as his recommended conclusions of law regarding MLRPC 3.3, 3.4, 4.1, 5.5, 8.1, and 8.4. Hecht requests that we continue his indefinite suspension. 2 On February 5, 2018, we heard oral argument in this matter. For the reasons explained below, we indefinitely suspend Hecht with the right to petition for reinstatement after twelve months from the date of this opinion. BACKGROUND We summarize the hearing judge's factual findings below.

Beginning of Representation Hecht was admitted to the Bar of this Court on June 23, 1994. In late September 2009, Lynn Crummitt was injured in a motor vehicle accident in Frederick County, Maryland. In early 2010, Lynn Crummitt and her husband, Irving J. Crummitt ("Jay Crummitt") (collectively, "the Crummitts") retained Hecht to represent them in a motor tort action resulting from the accident on a contingency basis. Hecht filed a complaint on behalf of the Crummitts in the Circuit Court for Frederick County.

Defendants' attorney, Keith M. Bonner ("Bonner"), filed an answer to the complaint and subsequently sent discovery requests to Hecht on May 9, 2013. Hecht's Suspension On May 16, 2013, we indefinitely suspended Hecht from the practice of law with the right to petition for reinstatement after six months on a matter unrelated to the representation of the Crummitts. Hecht's suspension began on June 15, 2013. At the evidentiary hearing in the Crummitts matter, the hearing judge found that "[Hecht], upon his suspension, turned off his office phones and cable and physically took the sign off the door of his law office. [Hecht] took these steps with the intent of shutting down his law practice" and "[a]lthough [Hecht] attempted to notify his clients in person, over the telephone and in writing that he had been suspended from the practice of law in Maryland, [Hecht] did not withdraw his appearance with the court from the Crummitts' case." The hearing judge noted that Hecht believed he had notified the Crummitts of his suspension by email, but that he could not confirm that the email had been sent.

Although Hecht did not specifically withdraw his appearance with the circuit court from the Crummitts' case, he did notify the U.S. District Courts in both Maryland and the District of Columbia that he had been indefinitely suspended from the practice of law in Maryland. Hecht's Continued Representation When neither Hecht nor the Crummitts responded by the discovery deadline, Bonner sent a letter dated July 1, 2013 to Hecht's law office stating that if discovery responses were not received within ten days that Bonner would file a motion to compel with the court. In his review of the discovery dispute, the hearing judge found that Hecht did not realize until August 6, 2013 that the "Crummitts had not retained new counsel or responded to the discovery requests," which "upset" and "worried" Hecht. The discovery responses were not received within the allotted time, and Bonner filed a motion to compel discovery.

The circuit court granted Bonner's motion to compel on August 28, 2013 and issued an order requiring the Crummitts to provide discovery responses within ten days. Lynn Crummitt asked Hecht for an update in the status of her case in early September 2013. Responding to Lynn Crummitt's text messages, Hecht did not disclose his suspension but did suggest that she meet with Peter Fayne ("Fayne") to gauge Fayne's willingness to serve as the Crummitts' attorney. This was Hecht's first attempt at finding alternative counsel for the Crummitts.

Hecht, claiming to be acting as an informal advisor rather than a legal practitioner, drafted the Crummitts' overdue answer to interrogatories, response to document requests, and certificate regarding discovery on approximately September 19, 2013. Hecht then emailed drafts of these discovery responses to Lynn Crummitt for her review. The next day, Heidi Hecht, wife of Respondent, followed up with Lynn Crummitt by text message to inquire whether Hecht had permission to sign the Crummitts' names on the discovery responses. Hecht believed he had permission to sign on behalf of the Crummitts, for these and future legal documents, because Heidi Hecht asked Lynn Crummitt, "Can Ross sign your signatures and send it in?" and Lynn Crummitt responded, "Yes he can." After receiving Lynn Crummitt's approval, Hecht signed and emailed the Crummitts' discovery responses to Bonner on September 30, 2013.

In the same email, Hecht apprised Bonner of his suspension from the practice of law. The hearing judge found that the text messages were ambiguous as to "which documents Lynn Crummitt was giving permission for [Hecht] to sign and whether Lynn Crummitt was giving [Hecht] permission to sign for Lynn Crummitt or both Lynn and Jay Crummitt." On October 22, 2013, Hecht recommended that Lynn Crummitt request an extension since the discovery deadline was the following day and there was an outstanding request for records from opposing counsel. Hecht drafted a request for an extension of the discovery deadline. The hearing judge found that, without the knowledge or consent of the Crummitts, "[Hecht] drafted a request to the court ... on the Crummitts' letterhead" and signed their names.

Bonner filed a motion to continue the scheduling order, pre-trial conference, and trial dates on October 29, 2013. In this motion, Bonner also informed the circuit court of Hecht's suspension from the practice of law in Maryland. Because Hecht was suspended, Bonner also sent a copy of the motion to the Crummitts. Thus, the Crummitts first learned of Hecht's suspension when they received this motion directly from Bonner.

At the evidentiary hearing, Lynn Crummitt testified that when confronted about his suspension, Hecht responded that he avoided telling her because he did not want to increase her stress level, that his suspension was a "slap on the wrist," and that he would be reinstated prior to her trial. After Lynn Crummitt confronted Hecht about his suspension, Hecht requested that she forward all correspondence related to her case to him. Hecht attended a status conference on December 4, 2013 for the Crummitts' case. At this and all future court proceedings involving the Crummitts' case, Hecht sat in the gallery in support of Lynn Crummitt and did not address the court or step behind the bar of the court.

Previous to the status conference, Hecht had informed Lynn Crummitt that he "couldn't go in front of the judge" but that he would sit close enough in the gallery that "if [she] had any problems, he would tell [her] what to say." At the status conference, Lynn Crummitt told Judge Dwyer, "I didn't realize [Hecht] was gonna be suspended so I have been trying to get another attorney." Lynn Crummitt also notified Judge Dwyer that she had an appointment with a new attorney. Bonner informed the court that the Crummitts had failed to respond fully to discovery requests. Judge Dwyer rescheduled the status conference to December 11, 2013. Judge Dwyer indicated that an updated scheduling order would be entered after the Crummitts retained new counsel.

Following the status conference, Hecht made a second attempt to secure new counsel by recommending Robert Fiore ("Fiore") at the law firm of Miller & Zois. Lynn Crummitt met with Fiore who was noncommittal at the meeting and said he would discuss the case with his partners. Afterwards, Miller & Zois sent a letter to Hecht stating they would only agree to take the case under certain conditions related to their malpractice liability. The hearing judge found that Hecht informed Lynn Crummitt that Miller & Zois declined the representation even though Miller & Zois had agreed to take the case if certain liability conditions were met.

At the rescheduled status conference on December 11, 2013, Lynn Crummitt appeared while Hecht again sat in the gallery. Bonner moved for dismissal during the conference based on the Crummitts' failure to comply with discovery requests. Lynn Crummitt responded that she would provide Bonner with additional documents. Judge Dwyer deferred ruling on the motion and scheduled a hearing for January 2, 2014.

On the morning of the hearing on January 2, 2014, Hecht attempted for the third time to secure the Crummitts with new counsel. He arranged a meeting between Aaron Blank ("Blank"), an attorney with Fayne's law office, and Lynn Crummitt. With Hecht in the gallery, Blank attended the hearing but told Judge Dwyer that he could not represent Lynn Crummitt in her lawsuit unless more time was granted for discovery and the trial was postponed. While Blank did not formally enter his appearance, he verbally requested that the court reopen discovery in the case.

Bonner countered that the case should be dismissed because he still had not received the required discovery materials from the Crummitts. Judge Dwyer reserved on Bonner's prior motion to dismiss and scheduled trial for January 21, 2014. After this hearing, Hecht drafted Plaintiffs' supplemental discovery responses and emailed them to Lynn Crummitt for her review. Hecht signed Lynn Crummitt's name on both documents.

Hecht also drafted two certificates regarding discovery and signed them without allowing Lynn Crummitt an opportunity to review the documents. Hecht sent the documents to Bonner and delivered the discovery materials on electronic media to the circuit court. Before the trial, Blank communicated to Hecht that he could not become counsel for the Crummitts until his firm talked to the expert that Hecht had been consulting with and thus, Blank would not attend the trial on January 21, 2014. Further, Blank stated that Hecht did not file expert identification which precluded calling any expert witnesses at trial.

At the January 21, 2014 trial, Hecht misinformed Lynn Crummitt that Blank would not be in attendance due to snow. With Hecht in the gallery, Lynn Crummitt relied on Hecht's false information and informed the court that Blank's absence was due to snow. In response, the circuit court denied Bonner's motion to dismiss and issued an amended Scheduling Order setting a trial date for May 2014. Thereafter, Hecht drafted twelve discovery documents for the Crummitts during March 2014.

Without showing these documents to the Crummitts, Heidi Hecht signed the documents on behalf of the Crummitts. Hecht sent the Crummitts' discovery documents to Bonner and filed them with the circuit court. In response, Bonner filed a motion to compel the Crummitts' complete discovery responses and sent a motion indicating that Bonner intended to depose the Crummitts in early April 2014. The Crummitts forwarded both motions to Hecht.

Though Lynn Crummitt alerted Hecht that she would be unable to be deposed on the date specified by Bonner, Hecht did not inform Bonner of Lynn Crummitt's unavailability until after the deposition was scheduled to begin. Bonner again moved to have the case dismissed in early April 2014. In response, Hecht drafted a motion to continue trial and sent it to Lynn Crummitt for review. Hecht signed Lynn Crummitt's name and filed the motion with the circuit court in late April 2014.

After submitting this motion, Hecht recommended that Lynn Crummitt meet with Elizabeth Cawood ("Cawood") to see if Cawood would be willing to enter as counsel in her case. This was Hecht's fourth and final attempt to secure new counsel for the Crummitts. After an initial meeting, Cawood's law firm partner decided that the firm should decline representation. When Hecht relayed this news to Lynn Crummitt, she terminated his representation.

On May 14, 2014, the court granted Bonner's motion to dismiss and dismissed the Crummitts' case with prejudice. The hearing judge recognized that Hecht was remorseful and had admitted his mistakes in the Crummitts' case. Additionally, the hearing judge concluded that Hecht made "numerous unsuccessful efforts to assist Lynn Crummitt in retaining a new attorney." The hearing judge also acknowledged that Hecht "paid $30,000.00 of his personal funds in money damages to the Crummitts as restitution for the Crummitts' lawsuit being dismissed." Finally, the hearing judge noted that Joseph Ruddy, Esq., an Assistant State's Attorney for Prince George's County, Judge C. Philip Nichols, Jr. of the Circuit Court for Prince George's County, and Judge Leo Green, Jr. of the Circuit Court for Prince George's County each testified to Hecht's competence and truthfulness. Standard of Review In an attorney discipline proceeding, this Court reviews for clear error a hearing judge's findings of fact, and reviews without deference a hearing judge's conclusions of law.

See Md. Rule 19-741(b)(2)(B) ("The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses."); Attorney Grievance Comm'n v. Chanthunya , 446 Md. 576 , 588, 133 A.3d 1034 (2016) ("This Court reviews for clear error a hearing judge's findings of fact." (Citations omitted) ); Md. Rule 19-741(b)(1) ("The Court of Appeals shall review de novo the [hearing] judge's conclusions of law."). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See Md. Rule 19-727(c) ("Bar Counsel has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence."). If exceptions to the findings of fact are filed, the Court "shall determine whether the findings of fact have been proved by the requisite standard of proof set out in Rule 19-727(c)." Md. Rule 19-741(b)(2)(B); See Attorney Grievance Comm'n v. Mahone , 435 Md. 84 , 104, 76 A.3d 1198 (2013).

DISCUSSION A. Exceptions to the Hearing Judge's Findings of Fact Bar Counsel does not except to any of the hearing judge's findings of fact. Hecht notes several exceptions to the hearing judge's factual findings that primarily argue for the inclusion of additional information instead of disputing specific findings. First, Hecht excepts to the hearing judge's findings of fact and requests to add the fact that after his suspension, he did not take on new clients and he referred prospective and existing clients to other attorneys. Further, Hecht believed that his appearance in criminal cases had been stricken by operation of law, and thus he did not check the mail at his closed office for sixty days.

Although the hearing judge found that Hecht discovered the Crummitts had not retained new counsel on August 6, 2013, Hecht contends that he did not realize the Crummitts had not retained new counsel or responded to discovery until September 18, 2013. These assertions are supported by Hecht's testimony and because Bar Counsel does not dispute Hecht's testimony as it relates to these exceptions, we sustain the exceptions. Second, Hecht excepts to the hearing judge's findings of fact and requests to add facts regarding his attempts to secure new counsel for the Crummitts. Specifically, after his suspension, he contacted and facilitated communication by Lynn Crummitt with four attorneys: 1.

Peter Fayne. After communicating in person and by text message on May 31, 2013, Hecht believed that Fayne would enter his appearance in the Crummitts' case. 2. Robert Fiore and the law firm Miller & Zois. At the December 11, 2013 status conference, Lynn Crummitt told Judge Dwyer that she had been in communication with Fiore and Fayne about representation and that both attorneys needed a continuance in order to join the case. 3.

Aaron Blank. Lynn Crummitt represented to Judge Dwyer that she had an attorney, referring to Blank, with her at the January 2, 2014 hearing. 4. Beth Cawood. When Cawood declined representation of Lynn Crummitt, Hecht stated that he had found another attorney willing to assist the Crummitts.

These assertions are supported by Hecht's testimony and because Bar Counsel does not dispute this testimony as it relates to these exceptions, we sustain the exceptions. Third, Hecht excepts to the factual findings regarding the date that he notified the Crummitts of his suspension. His exception states that "on approximately September 18, 2013, Hecht told Lynn Crummitt that he was suspended, that he would assist her in fending off the then-present motion to dismiss, and that Lynn had to hire another attorney, 'Peter or someone.' " Lynn Crummitt testified that at no point during these September 18, 2013 communications did Hecht admit he was suspended from the practice of law. Lynn Crummitt stated that Hecht mentioned Fayne to her, explaining that Hecht wanted Fayne involved because he "was a very successful personal injury attorney" and that her case "needed a big firm like his for their clout." Due to Lynn Crummitt's testimony, we cannot conclude that the hearing judge erred in determining the date that he told Lynn Crummitt he was suspended.

Thus, Hecht's exception as to when he told Lynn Crummitt that he was suspended is overruled. Fourth, Hecht excepts to the hearing judge's findings of fact regarding the authority for him to sign documents on behalf of the Crummitts. Hecht avers that he had the authority to sign the Crummitts' name on various pleadings and documents after the text message conversation between Hecht's wife and Lynn Crummitt and that Hecht believed he had the authority to execute certain documents due to his correspondence with Lynn Crummitt dated September 20, 2013 and December 31, 2013. While this assertion is supported as to the documents referenced in the September 20, 2013 and December 31, 2013 communications, it is not clear or reasonable that Hecht had continuing permission to sign the Crummitts' documents before and after these communications.

As such, Hecht's exception is sustained to the documents discussed during the September 20, 2013 and December 31, 2013 communications, but the exception is overruled in regard to any documents in which Hecht did not affirmatively ask the Crummitts' permission to sign. B. Conclusions of Law Bar Counsel excepts to the hearing judge's failure to find that Hecht violated MLRPC 8.1(a) and 8.4(c) during the course of the Bar Counsel's disciplinary investigation, and that Hecht's conduct, taken as a whole, violated MLRPC 8.4(d). Hecht excepts to the hearing judge's conclusions of law regarding MLRPC 3.3, 3.4, 4.1, 5.5, 8.1, and 8.4. Based upon our independent review of the record, we sustain Bar Counsel's exceptions as to MLRPC 8.1(a), 8.4(c), and 8.4(d), overrule Hecht's exceptions to the hearing judge's conclusions of law, and uphold the rest of the hearing judge's conclusions of law.

MLRPC 1.1, 1.3, 3.2, and 3.4 The hearing judge found Hecht "failed to timely and adequately respond to discovery requests on behalf of the Crummitts," ultimately "resulting in their case being dismissed with prejudice," violating MLRPC 1.1, 1.3, 3.2, and 3.4. MLRPC 1.1 requires that an attorney "provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." MLRPC 1.3 requires that a lawyer must also "act with reasonable diligence and promptness in representing a client." Conduct which violates MLRPC 1.1 will often also violate MLRPC 1.3. See Attorney Grievance Comm'n v. McCulloch , 404 Md. 388 , 398, 946 A.2d 1009 (2008).

Under MLRPC 3.2, a lawyer is required to "make reasonable efforts to expedite litigation consistent with the interests of the client." MLRPC 3.4(d) requires that a lawyer not "fail to make reasonably diligent effort to comply" with an opposing party's discovery request. Hecht excepts to the hearing judge's finding that he violated MLRPC 3.4(d). While we acknowledge Hecht's many attempts to find new counsel for the Crummitts, Hecht repeatedly failed to comply with discovery deadlines. Hecht's involvement in the lawsuit, both before and after the Crummitts realized he was suspended, delayed the trial unnecessarily and ultimately caused the case to be dismissed.

We conclude that these facts display a lack of competent representation, diligence, and expedience. Therefore, we agree with the hearing judge and conclude that Hecht's conduct violated MLRPC 1.1, 1.3, 3.2, and 3.4(d) and overrule Hecht's exception. MLRPC 1.4 and 1.16 MLRPC 1.4 provides, in part: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers' Rules of Professional Conduct or other law. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

MLRPC 1.16(a) states: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers' Rules of Professional Conduct or other law: (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. MLRPC 1.16(d) provides: (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. The hearing judge found Hecht in violation of MLRPC 1.4 and 1.16 "because he failed to specifically notify the Crummitts that he had been suspended from the practice of law and could no longer act as their attorney." Hecht was suspended on May 16, 2013, and the suspension began on June 15, 2013.

The Crummitts did not know that Hecht, who acted as though he was still an active attorney, had been suspended until October 29, 2013. Further, they only became aware of Hecht's suspension due to Bonner sending a motion directly to the Crummitts. Even after the Crummitts learned that Hecht was suspended, Hecht failed to affirmatively assert to the Crummitts that he was barred from providing legal services, such as drafting legal documents, or rendering legal advice. Based upon these facts, the hearing judge found that Hecht was not forthcoming about his suspension or his inability to practice law when suspended.

Moreover, Hecht's lack of candor regarding his professional status exacerbated the problems facing the Crummitts in pursuing their lawsuit. Accordingly, we agree with the hearing judge and hold that Hecht's conduct violated MLRPC 1.4(a), 1.4(b), 1.16(a), and 1.16(d). MLRPC 3.3, 4.1, and 5.5 Hecht excepts to the hearing judge's finding that he violated MLRPC 3.3, 4.1, and 5.5. The hearing judge found Hecht sent pleadings and discovery responses to the Court and Bonner "purported to be prepared by the Crummitts themselves that in fact were prepared and signed by [Hecht]" and that Hecht "was untruthful with the Crummitts in failing to explain his suspension," violating MLRPC 3.3 and 4.1.

Because of these actions, the hearing judge also concluded that Hecht violated MLRPC 5.5. Though he does not specifically refer to MLRPC 3.3, 4.1, and 5.5, Hecht argues that "he attempted to informally" assist the Crummitts which was "well-intentioned but inartfully executed." The hearing judge concluded that Hecht "misled his client by alleging Aaron Blank would not appear at the January 21, 2014 court hearing due to inclement weather and Lynn Crummitt repeating the assertion to the court." According to his testimony, Hecht knowingly misrepresented to Lynn Crummitt in an effort to reduce her stress. MLRPC 3.3(a) states that an attorney must not "make a false statement of fact or law to a tribunal." Regardless of his reasoning, Hecht made a false statement to Lynn Crummitt who, acting on Hecht's advice and information, unintentionally informed the circuit court of a misrepresentation upon which the circuit court relied. The record is clear that Hecht's conduct violated MLRPC 3.3 and therefore, we overrule Hecht's exception.

Contrary to his assertion, Hecht's actions rose to the level of performing legal tasks rather than, as Hecht argues, informal, non-legal assistance. In certain instances, Hecht would sign the Crummitts' signatures on documents he drafted and submit the legal documents to the circuit court or opposing party even though he was suspended. MLRPC 5.5 forbids an attorney from engaging in the practice of law "in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction" and forbids a suspended attorney from