Attorney Grievance Comm'n of Md. v. Jacobs

ARGUED BEFORE: Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Greene, J. On May 31, 2017, the Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 19-721, filed a "Petition for Disciplinary or Remedial Action" against William Michael Jacobs ("Respondent"). The petition arose out of Respondent's representation of one client in two separate personal injury matters. Petitioner alleged that Respondent violated Maryland Attorneys' Rules of Professional Conduct ("MARPC" or "Rule") 1 specifically, 19-301.1 (Competence), 2 19-301.3 (Diligence), 3 19-301.4 (Communication), 4 19-301.16 (Declining or Terminating Representation), 5 19-308.1 (Bar Admission and Disciplinary Matters), 6 and 19-308.4 (Misconduct). 7 This Court referred the matter to the Honorable Mary M. Kramer of the Circuit Court for Howard County for a hearing and to render findings of fact and conclusions of law pursuant to Rule 19-727. 8 Judge Kramer conducted an evidentiary hearing on November 21, 2017.

Thereafter, Judge Kramer issued a Statement of Findings and Conclusions, in which she found, by clear and convincing evidence, that Respondent's acts constituted violations of Rules 19-301.1, 19-301.3, 19-301.4(a), 19-301.16(d), 19-308.1(b), 19-308.4(a) and (b). 9 For the reasons explained herein, we conclude that the hearing judge's conclusions of law as to violations of the aforementioned Rules were supported by clear and convincing evidence. Additionally, we sustain Petitioner's exception and hold that Respondent also violated Rule 19-308.4(d). FINDINGS OF FACT We summarize and quote the hearing judge's findings of fact below. Respondent was admitted to the Maryland Bar on December 20, 1983.

He is a solo practitioner with offices located in Howard County, Maryland. On March 11, 2001, Ms. Luen Mei Yu was involved in a car accident in Montgomery County, Maryland. On November 25, 2002, Ms. Yu went to the law offices of Marc Ward, Esquire, in Frederick, Maryland to obtain representation with regard to injuries she sustained during the car accident. Mr. Ward referred the case to Respondent.

Ms. Yu retained Respondent on a contingent fee basis to file suit against Terry Stupay, the alleged negligent driver of the other vehicle involved in the accident. On March 11, 2004, Respondent, on behalf of Ms. Yu, filed a Complaint in the District Court of Maryland for Montgomery County to recover damages for Ms. Yu's injuries arising out of the March 11, 2001 automobile accident. On April 12, 2004, the court issued a summons to be served upon Mr. Stupay by May 12, 2004. "Respondent located an address for Defendant Stupay using an internet service, and attempted to serve the Defendant at that address by certified mail." Mr. Stupay was not served by May 12, 2004.

On September 14, 2005, the District Court of Maryland for Montgomery County dismissed the case pursuant to Maryland Rule 3-507 10 for lack of jurisdiction because the Defendant had not been served. Respondent never notified Ms. Yu that he was unable to serve Mr. Stupay and that her case had been dismissed because of the failure to serve the defendant. On November 4, 2005, Respondent filed a Motion to Defer the Effect of Rule 3-507 indicating that, 'Plaintiff now has a good current address for Defendant and will take steps to renew the summons and effectuate service promptly.' He stated further that he 'has diligently attempted to locate Defendant since the suit was filed.' On November 30, 2005, the District Court granted the motion and issued a second summons. On June 10, 2009, nearly four years after the issuance of the second summons, Respondent requested that the District Court reissue a summons for Mr. Stupay.

A third summons was issued on July 6, 2009 to the same address as the first summons. Respondent filed another Motion to Defer Effect of Rule 3-507 on August 26, 2009. In his Motion, Respondent stated, "Plaintiff was unable to complete service due in part to the Clerk's premature dismissal of the case while the Summons was still valid and pending." He also stated that he "has diligently attempted to locate Defendant since this suit was filed." Respondent did not offer any supporting evidence of his attempts to serve Mr. Stupay. The Court granted the Motion on September 9, 2009.

Respondent did not inform Ms. Yu that her case had been dismissed, that the court granted his motion to reopen the case, or that he was having trouble serving Mr. Stupay. The case was dismissed again on November 24, 2010, pursuant to Maryland Rule 3-507, because the Defendant had not been served. There was no response from Respondent. "At this point, the statute of limitations had expired on Ms. Yu's case, and she was foreclosed from recovery for her injuries.

Respondent failed to take any further action on behalf of Ms. Yu and he failed to advise her that her complaint had, once again, been dismissed." Respondent never attempted to serve Mr. Stupay by alternate service. On June 14, 2004, Ms. Yu was involved in another collision in Montgomery County, Maryland. Ms. Yu retained Respondent, on an unknown date, to represent her in that case. On June 14, 2007, Respondent, acting on behalf of Ms. Yu, filed a Complaint in the District Court of Maryland for Montgomery County against Denis Lopez, the driver of the other vehicle involved, and Marcy Hunter, the alleged owner of the vehicle.

On May 20, 2009, almost two years later, the District Court dismissed the case pursuant to Maryland Rule 3-507 because Defendant Lopez had not been served. Respondent filed a Motion to Defer Effect of Rule 3-507 on June 10, 2009. The hearing judge found in the 2004 claim against Denis Lopez: In the Motion Respondent stated, 'Plaintiff now has a good current address for [the] Defendant[s] and will take steps to renew the summons and effectuate service promptly.' Respondent stated further that he 'has diligently attempted to locate [the] Defendant[s] since this suit was filed.' Respondent did not offer any evidence of what attempts were made to effectuate service. The District Court vacated the dismissal on June 26, 2009.

As of September 27, 2010, pursuant to Maryland Rule 3-507, the District Court had dismissed the case because Defendant Lopez had not been served. On October 22, 2010, Respondent filed another Motion to Defer Effect of Rule 3-507. In his Motion, Respondent stated that "there was good cause for delay in service due to [the] inability to locate either Defendant, despite good faith efforts to do so." Respondent, however, failed to offer any evidence of his attempts to effectuate service. The court denied the motion on November 1, 2010.

Roughly three weeks later, Respondent requested that the District Court reconsider its denial of his Motion to Defer Effect of Rule 3-507. "Again, Respondent failed to provide any evidence of what good faith efforts were made to effectuate service on the Defendants." On December 27, 2010 the District Court denied the motion. In its denial, the court stated that there was no "evidence of any efforts to reissue or serve the unserved defendant." The hearing judge found: Throughout the pendency of the representation, the Respondent failed to promptly inform Ms. Yu about his difficulties serving the Defendants, failed to keep Ms. Yu reasonably informed about the status of the matter, and failed to promptly comply with her reasonable requests for information. At this point, the statute of limitations had expired on Ms. Yu's case and she was foreclosed from recovery for her injuries.

Bar Counsel and Respondent disagreed about Ms. Yu's fluency in English. The hearing judge discussed Ms. Yu's command of the English language "because it [wa]s, in part, Respondent's explanation for why he did not communicate with Respondent in writing." The hearing judge explained: Ms. Yu was born in Indonesia and has been in the United States since 1985. She is a United States citizen who completed her education to become a Licensed Practical Nurse ("LPN") in the United States. ... Ms. Yu speaks English at her job and has been an LPN for thirteen years.

Ms. Yu was able to testify and respond to questions posed to her [during the disciplinary proceedings in the Circuit Court.] However, at one time in her testimony, Ms. Yu had difficulty with the term: 'fax transmission sheet.' Ms. Yu's writing in English communicates effectively, even if her English is not perfect. Ms. Yu's understanding of the written English language is not as clear. She testified that she signed the Contingent Fee Retainer Agreement with Respondent without first reading it. When Respondent asked Ms. Yu to read the Contingent Fee Retainer Agreement in court, Ms. Yu appeared extremely uncomfortable.

Judge Kramer concluded that Ms. Yu had a "functional" command of the English language, "although she may struggle with unfamiliar terms or vocabulary." According to the hearing judge: Respondent contend[ed] that he and Ms. Yu mutually agreed to communicate orally and not in writing. Ms. Yu did not address this contention in her testimony. Ms. Yu indicated that it was she who would initiate communication with Respondent. She would call Respondent from time to time to check on the progress of her cases, and on each occasion, Respondent would update Ms. Yu's address and phone number and indicate that her cases were 'in progress' or that he was trying to get more money from the other side.

Ms. Yu insisted that Respondent never indicated to her in these conversations that there were any difficulties with her cases. Respondent claim[ed] that Ms. Yu has a poor memory of what occurred in her cases. There was some support for this position. At the time of the hearing, Ms. Yu was adamant that the first auto accident in which Respondent represented her had occurred in 1998. 11 Although "Ms. Yu's refusal to concede that she was incorrect on the date of the accident impaired her credibility," the hearing judge did not believe that Ms. Yu intentionally gave false testimony.

Rather it was the hearing judge's impression that Ms. Yu "stubbornly adhered to her version of the events," even when she was mistaken about some of the details. Judge Kramer found that Ms. Yu's memory of specific facts was not completely accurate: In one instance, Ms. Yu changed her testimony. On direct examination, Ms. Yu testified that when she went to Marc Ward's office, she thought Respondent was Mr. Ward. Ms. Yu changed her testimony on cross-examination.

When confronted, she said she met with Mr. Ward in a small room, and then met with Respondent. There was also an occasion when Respondent changed his testimony. He testified that for Ms. Yu's first auto accident, a hit and run, Ms. Yu had only given him a name and phone number for the other driver, and that Ms. Yu had gone to the police station to file a report after the accident had happened. On cross-examination, however, Respondent admitted that a police officer interviewed Ms. Yu at the scene of the accident and completed a police report.

The police report contained a tag number for the vehicle that collided with Ms. Yu, and that tag number was provided by Ms. Yu to the police officer. When asked about the tag number for the other car on the police report, Respondent indicated that it was probably a temporary tag that could not be traced. Respondent and Ms. Yu agree that they met at Respondent's office in December 2010, but they disagree on the "purpose and outcome of that meeting." Ms. Yu contends that the two of them met so that she could obtain Respondent's representation for another car accident in which she had been involved. Respondent agreed that they discussed a third automobile accident case but stated that he had declined to represent Ms. Yu in that matter.

He asserted that the meeting was held "at his request to inform Ms. Yu that her cases had been dismissed and to let her know that he would hold the files for a period of three years before they would be destroyed, per his office policy." Ms. Yu adamantly denied that this discussion took place at that meeting. The hearing judge found Ms. Yu to be more credible on the issue of whether Respondent informed Ms. Yu of the dismissal of her cases in December 2010 because it was a significant fact that Ms. Yu was unlikely to forget. Judge Kramer found that "Ms. Yu's conduct was consistent with her contention that she was not aware that her cases were dismissed. She continued to try to contact Respondent, first by leaving telephone messages for him, and later by sending him a letter by fax and one by mail." Ms. Yu also reached out to a friend's brother who was an attorney and discussed her cases with that attorney.

Further, according to the hearing judge, "Respondent's subsequent conduct was not consistent with his position that he had told Ms. Yu in 2010 that her cases were dismissed. He did not return phone calls from Ms. Yu. He did not respond to the November 23, 2014 letter from Ms. Yu." Judge Kramer reasoned that "had Respondent previously told Ms. Yu about the dismissal of her cases and the office policy of destroying files, one would expect that he would reply to this letter reminding Ms. Yu of that conversation. He did not do so." Ms. Yu testified that after the December 2010 meeting she called Respondent numerous times and never got a response.

The hearing judge explained her findings: [A]s a result, Ms. Yu sent two letters to Respondent asking for the return of her files. The first letter was faxed in July 2014, and the second was mailed to Respondent in November 2014. Respondent indicated he did not get the July 2014 letter until he received it as an enclosure to the November 2014 letter, and he indicated that he no longer had a fax machine as of 2012. Interestingly, Ms. Yu is the only party who documented her position in writing.

She wrote to Respondent in 2014 asking Respondent to return her files. In her letter, she indicated that she had left numerous telephone messages for Respondent that were not returned. Respondent did not respond to this letter in writing. At the time of the hearing, when asked why he did not reply to Ms. Yu's November 2014 letter, Respondent indicated that he had delays in receiving mail.

Respondent attributed this delay to his inability to retrieve the mail from his office's mail chute. He also offered as a reason for his non-response that Ms. Yu did not list her name or address on the envelope. "He then corrected himself, and stated that he probably did not open the envelope when it arrived because it may have been a holiday." The hearing judge found Respondent's response to the question about why he did not respond to the November 2014 letter to be "circular and not credible" and that "[Respondent] seemed to give a lot of detail in order to buy time to think of an answer." Respondent's communication with Bar Counsel went from inconsistent to nonexistent. Respondent only sent one letter to Bar Counsel.

In that letter, dated April 7, 2016, Respondent detailed his response to the allegations in Ms. Yu's complaint. He stated that he did not receive Ms. Yu's letter of July 2014 'until he received it as an attachment to her November 2014 letter.' The Respondent stated further that he was not able to give Ms. Yu a copy of her file because the files had been destroyed pursuant to his office's retention policy, which, he alleged was to destroy his files three years after he closed the case. The Respondent further stated that he did attempt to locate the files but was unable to do so 'after a diligent search lasting over a month.' On April 29, 2016, Bar Counsel sent another letter to Respondent notifying him that the matter would be docketed and asking him to respond by May 13, 2016 to another letter Ms. Yu had mailed to Bar Counsel. Respondent did not respond to that letter or Bar Counsel's follow-up letters dated May 31, 2016, June 9, 2016, and June 21, 2016.

Each letter contained a request that Respondent respond within seven days of the date of the letter. At the disciplinary hearing, "Respondent indicated that he was aware of his obligation to reply, but was intimidated by getting letters from the Attorney Grievance Commission and instead of acting he 'ducked and covered.' " Respondent was personally served with the Petition for Disciplinary or Remedial Action on June 28, 2017 but did not respond within 15 days. "Respondent testified that he thought he had 60 days to file the response. Later he realized he was late when he attempted to file his response within 60 days." Respondent, however, never requested an extension of time in which to file an answer.

On August 3, 2017, Bar Counsel mailed discovery to Respondent. Respondent indicated that he received the letter a month later because it had the wrong zip code. "On cross-examination, Respondent admitted that the interrogatories had the correct zip code, and that he had not made a timely response." II. CONCLUSIONS OF LAW The hearing judge concluded that Respondent violated the following Maryland Attorneys' Rules of Professional Conduct over the course of his representation of Ms. Yu and the disciplinary proceedings.

Rule 19-301.1 Competence Respondent violated Rule 19-301.1 in his representation in both of Ms. Yu's matters. Although neither case involved complex legal issues requiring specialized knowledge or training, he failed to perform "[b]asic skills for locating defendants and serving them with process[.]" Respondent failed to describe any other efforts or alternative methods of service of process he had used when his attempt of service by certified mail was unsuccessful. Judge Kramer found that, "[h]is lack of efforts eventually resulted in the [dismissal of both of Ms. Yu's cases, pursuant to Maryland Rule 3-507,] after the statute of limitations had run, depriving Ms. Yu of any ability to seek monetary damages for her injuries." Rule 19-301.3 Diligence Respondent demonstrated a lack of diligence in his representation because he "failed to timely make efforts to locate and serve the opposing parties in both of Ms. Yu's cases, and did not follow up when his initial efforts were unsuccessful." Judge Kramer recognized that Respondent's only excuse for not using the license plate number described in the police report to locate Mr. Stupay was that "it was probably a temporary tag from out of state, as if such a tag could not be traced to an owner." She opined that, "[o]ne would expect a lawyer to inquire further into the tag number to assist in locating Defendant Stupay, or in identifying the owner of the vehicle, who may be able provide an address for Defendant Stupay." Rule 19-301.4 Communication Respondent violated Rule 19-301.4(a)(3) when he failed to promptly comply with Ms. Yu's reasonable requests for information about her cases. He failed to keep Ms. Yu reasonably informed of the important developments in both of her cases, such as his difficulty locating and serving the defendants, the dismissal of her cases under Maryland Rule 3-507 for failure to prosecute, or of the efforts he was making to have the court defer the dismissal.

The hearing judge explained: Ms. Yu credibly testified that it was she who would initiate contact with Respondent by telephone. Ms. Yu indicated that Respondent would routinely ask for an update on her address and telephone numbers, and would tell her that he was talking to [the] other side to get more money for her case and that her case was 'in progress.' Had she been aware of the difficulties with locating and serving the opposing parties in each of her cases, Ms. Yu may have wanted to hire a private process server or private investigator to locate the defendants. She may have wished to seek other legal counsel. She was deprived of these opportunities by the lack of communication.

Rule 19-301.16 Declining or Terminating Representation Judge Kramer concluded that: Respondent violated Rule 1.16(d) in failing to protect Ms. Yu's interests at the time he abandoned efforts on her behalf. He did not give her timely and reasonable notice of the difficulties he was having in pursuing her cases, and failed to surrender her papers to her so that she could pursue other options. Rule 19-308.1 Bar Admission and Disciplinary Matters Respondent violated Rule 19-308.1(b) when he failed to respond to Assistant Bar Counsel's letters of April 29, 2016, May 31, 2016, June 9, 2016, and June 21, 2016. Furthermore, Respondent intentionally misrepresented the facts to Bar Counsel in an effort to excuse his misconduct.

Judge Kramer stated: Respondent sent a letter to Assistant Bar Counsel responding to Ms. Yu's allegations on April 7, 2016. In the letter, Respondent stated that he elected to communicate in person with Ms. Yu because of her weak skills with the English language, and because she had informed Respondent that 'she was frequently away from her Maryland address for long periods of time, spending several months a year in her native [country] China, and that she was unable to receive mail during those periods of absence.' Ms. Yu was adamant that she never told Respondent that she was away for months at a time, or that she was unable to receive mail. In fact, Ms. Yu testified that she works full time and has never left home for more than four weeks at one time for an international trip. When she did leave, there was someone at her home to receive mail. * * * Furthermore, in the letter to Bar Counsel of April 7, 2016, Respondent indicates that he left a voice message for Ms. Yu about one month after receiving her November 2014 letter telling her he could not locate her file.

Ms. Yu adamantly denies this, and this court finds her more credible on that issue. There were other misstatements in Respondent's April 7, 2016 letter, including Respondent's indication that Ms. Yu had failed to get a license [plate] number for [the vehicle operated by] the opposing party in her 2001 accident. The license [plate] number was included in