Attorney Grievance Comm'n of Md. v. Plank

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ. Hotten, J. *⁴⁴⁷ Respondent, Bonnie Elizabeth Plank was admitted to the Bar of the Court of Appeals on June 13, 2006. On December 17, 2015, Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent. On December 22, 2015, this Court ordered that the case be transmitted to the Circuit Court for Baltimore County and designated the Honorable Judith C. Ensor to conduct an evidentiary hearing and render findings of fact and conclusions of law.

Petitioner filed an Amended Petition for Disciplinary or Remedial Action in this Court on January 29, 2016 ("Amended Petition I"). The charges brought in Amended Petition I are based on conduct outlined in four separate complaints filed with the Commission. On June 7, 2016, Petitioner filed a separate Petition for Disciplinary or Remedial Action and a Motion to Consolidate Petitions for Disciplinary or Remedial Action ("Petition II"), based on an additional complaint. By order dated June 13, 2016, this Court consolidated the two cases for purposes of a hearing.

Respondent failed to appear at the evidentiary hearing on December 13, 2016. Thereafter, the hearing judge issued written findings of fact and proposed conclusions of law, determining that the Respondent violated Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1 1.1; 1.3; 1.4; *⁴⁴⁸ 1.5(a); 1.6; 1.15(a) and (c); 1.16(d); 3.3(a); 5.5(a); 7.1(a); 8.1(b); and 8.4(b), (c), and (d). This Court scheduled argument for April 4, 2017. Respondent did not appear.

Bar Counsel recommended disbarment as the appropriate sanction. ⁸⁸⁹ We issued a per curiam order on April 4, 2017 disbarring Respondent immediately from the practice of law in the State of Maryland. We now explain our reasons for that order. I. Hearing Judge's Findings and Conclusions Because Respondent failed to file an Answer to the Commission's Petition for Disciplinary or Remedial Action, the hearing judge treated the averments in the Petition as admitted pursuant to Md. Rule 2-323(e). Based upon clear and convincing evidence, the hearing judge presented the following findings of fact: 2 Respondent was admitted to the Bar of the Court of Appeals of Maryland on June 13, 2006.

At all times relevant to this matter, Ms. Plank was not admitted to practice law in any other State or in the District of Columbia. During the time period of the first four complaints set forth in Amended Petition I, Respondent maintained an office for the practice of law in Howard County and/or Montgomery County, Maryland. Her right to practice law has been suspended temporarily since March 24, 2016, as a result of Ms. Plank's "non-payment of CPF Assessment Fee." Amended Petition I 1. Bar Counsel Complaint On January 29, 2015, the Morgan County Sheriff's Department in West Virginia advised Petitioner that Ms. Plank had been charged with Driving Under the Influence of Controlled Substances and Possession of Controlled Substance-Marijuana following her arrest on January 28, 2015. *⁴⁴⁹ On February 20, 2015, the Commission sent a letter, with copies of the charging documents from West Virginia, to Respondent, notifying her that an investigation would be conducted regarding the alleged conduct.

Petitioner requested a written response, within 15 days, as to the allegation that Ms. Plank had violated MLRPC 8.4(b) and (d). Respondent failed to provide Petitioner with a response. On April 9, 2015, Commission Investigator William Ramsey ("Investigator Ramsey") met with Respondent and inquired about the criminal charges. At that time, Respondent invoked her Fifth Amendment privilege but denied having a substance abuse problem.

At the meeting, Respondent provided Investigator Ramsey with Maryland Judiciary Case Search print-outs relevant to her name. The print-outs showed multiple citations issued to Ms. Plank for driving while her license was suspended in Maryland. [ ] In addition, on April 6, 2015, in the Circuit Court for Howard County, Respondent pled guilty to failing to display a driver's license to a uniformed officer. On December 16, 2015, Respondent entered guilty pleas in Morgan County, West Virginia to charges of Driving Under the Influence of Controlled Substances (West Virginia Code § 17C-5-2 ) and Possession of Controlled Substance-Marijuana (West Virginia Code § 60A-4-401 ). Her pleas were accepted; Ms. Plank was convicted of both charges.

Respondent was ordered to pay a $200 fine and $260.25 in costs and fees for the Driving Under the Influence of Controlled Substances conviction. For the Possession of Controlled Substance-Marijuana conviction, Respondent was required to pay a $100 fine and $165.25 in costs and fees. 2. Jones Complaint On March 27, 2014, Mr. Howard Vernon Jones ("Mr. Jones") hired Respondent ⁸⁹⁰ to represent him in a Chapter 7 bankruptcy proceeding because his home was in foreclosure. Throughout the representation, Respondent met with Mr. Jones at his home and never provided him with an office address.

Mr. Jones and Respondent agreed that they would *⁴⁵⁰ communicate regarding his representation by cell phone, text message, and email. At their initial meeting, Ms. Plank requested a fee of $1,200. Although she had not yet provided any legal services, Respondent accepted a payment of $600 from Mr. Jones. Ms. Plank promised to provide a receipt for this payment, but failed to do so.

Mr. Jones tendered an additional payment of $600.00 to Respondent roughly one week after the initial meeting. On March 27, 2014, notwithstanding the fact that he had instructed her to file for bankruptcy under Chapter 7, Ms. Plank filed for Chapter 13 bankruptcy on behalf of Mr. Jones. At a meeting with Respondent, Mr. Jones learned of the incorrect filing and again instructed Ms. Plank to file for bankruptcy pursuant to Chapter 7. Respondent indicated that she would.

On or about June 26, 2014, Respondent filed a petition for Chapter 7 bankruptcy on behalf of Mr. Jones, but failed to address in any manner the incorrect Chapter 13 bankruptcy filing. Mr. Jones appeared for a scheduled meeting/hearing in the Bankruptcy Court on or about August 15, 2014. Just prior to the meeting/hearing, Mr. Jones received a telephone call from Respondent. Ms. Plank indicated that she was in the hospital in Baltimore and instructed Mr. Jones to return to his home.

Although Ms. Plank told Mr. Jones that she would contact him about rescheduling the meeting/hearing, she failed to do so. After numerous failed attempts to contact Respondent, Mr. Jones ultimately engaged new counsel. Mr. Jones learned, through his subsequent attorney, that Respondent had failed to withdraw the incorrectly filed Chapter 13 bankruptcy petition. On May 28, 2014, the Chapter 13 filing was dismissed.

The Bankruptcy Court directed Respondent to file, by June 11, 2014, a response justifying her fee. Ms. Plank failed to do so. On June 27, 2014, the Bankruptcy Court issued an order directing Respondent to refund the fee to Mr. Jones. On August 19, 2014, Respondent filed a Motion for Reconsideration of the Dismissal of the Chapter 13 filing and *⁴⁵¹ Reduction of Fees; the Motion was denied.

On July 29, 2014, the Chapter 7 bankruptcy case was dismissed and Respondent was again ordered to refund any attorney's fees. Respondent failed to refund the fees. On September 5, 2014, the Commission sent Respondent a letter, notifying her of the complaint filed by Mr. Jones and requesting a response within 15 days. On September 30, 2014, because there was no response, Petitioner sent a second letter, again requesting information from Ms. Plank.

The letter was returned as undeliverable. On November 10, 2014, Petitioner sent a third letter to Respondent's last known address. In this correspondence, Petitioner requested that Ms. Plank provide a written response, a copy of the file Respondent maintained for Mr. Jones, and an accounting of the fees. Ms. Plank failed to respond in writing to any of Petitioner's letters.

That said, after Ms. Plank received the letter of November 10, 2014, she contacted Petitioner. Ms. Plank claimed that the Mr. Jones who made the complaint was not her client and stated that the signatures on the complaint did not match those of ⁸⁹¹ her former client. Investigator Ramsey, after meeting with Mr. Jones, confirmed that the complainant had engaged Respondent and was, in fact, the correct Mr. Jones. On February 27, 2015, Petitioner sent another letter to Respondent, reminding her that a written response was due.

On or about March 9, 2015, Ms. Plank sent an email to the Commission. That email, however, lacked any substantive information regarding the complaint. Petitioner did speak with Respondent by telephone on March 11, 2015. During the telephone call, Petitioner reminded Ms. Plank that she was required to provide a written response to the complaint.

Respondent stated that she had been out of town for about three weeks and assured Investigator Ramsey that she would respond to the complaint within one week; still, Ms. Plank did not provide a written response. *⁴⁵² At the request of Investigator Ramsey, Respondent met with him again on April 8, 2015. At that meeting, Ms. Plank confirmed that she had represented Mr. Jones and had filed on his behalf for bankruptcy under Chapter 7 and Chapter 13. Respondent indicated that she received $1,200 in attorney's fees and that, of that amount, she used $306 to pay filing fees. Respondent further indicated that, because she did not have the necessary software for the court filings, she had to engage the assistance of another attorney and his paralegal.

Ms. Plank stated that she paid the paralegal $894, the balance of the fee received from Mr. Jones. Neither the attorney nor the paralegal ever received the $894 payment. 3. Lal Complaint Respondent was engaged by Aung Kyaw Min Lal ("Mr. Lal") on or about December 16, 2014. She was retained to represent Mr. Lal in the defense of a debt collection case filed on or about September 19, 2014.

The amount in controversy was $5,600. Prior to Respondent's involvement, in November 2014, the plaintiff moved the case from Baltimore County to Washington County, Maryland. Ms. Plank and Mr. Lal agreed that her fee for services rendered would be $500 if the case was resolved prior to a hearing and $1,500 if a hearing was necessary. Mr. Lal paid Respondent $1,500 at the time of the engagement.

Ms. Plank failed to place the funds in an attorney trust account and failed to withdraw properly the funds as earned. During her representation of Mr. Lal, Ms. Plank propounded Interrogatories to the plaintiff. The discovery requests, however, were not filed timely pursuant to Maryland Rule 3-421(b). Moreover, Respondent did not obtain leave of Court to propound the discovery after the deadline.

In March, 2015, Mr. Lal authorized Respondent to offer $2,500 in settlement of the matter. Respondent, however, informed Mr. Lal that she required him to produce the $2,500 in advance of her transmitting the offer. Respondent further indicated that, if she was able to negotiate and decrease the settlement amount, she would keep the balance of the $2,500 for her continuing involvement in the case. Ms. *⁴⁵³ Plank attempted to justify her actions by informing Mr. Lal that she had earned in excess of what he had paid her.

Using false information and threats, Respondent pressured Mr. Lal to accept her conditions vis-à -vis the settlement offer. For instance, Ms. Plank incorrectly advised Mr. Lal that he could be found criminally liable for refusing to comply with a trial subpoena for the ⁸⁹² production of records. Opposing counsel in the debt collection case confirmed that Mr. Lal was not under any obligation to produce records at the time of Respondent's advice on March 24, 2015. In addition, Ms. Plank informed Mr. Lal that she was risking her license by continuing to act on his behalf.

In response to Respondent's demands, Mr. Lal requested a release of the debt before he produced the funds. After Mr. Lal refused to accept Respondent's new conditions, Ms. Plank changed the terms of the agreement without his consent. Although Respondent previously had indicated that Mr. Lal owed her $800, she subsequently informed Mr. Lal that he now owed her $2,500. Ms. Plank continued to provide false information to Mr. Lal and accused him of committing fraud on the Court.

She threatened to file a $50,000 breach of contract claim against Mr. Lal and report him to the board that oversees his professional licensing. Respondent further advised Mr. Lal that she was entitled to punitive and actual damages and that he would be responsible for paying them. Mr. Lal did not send Respondent any additional funds and settled the case without her assistance. On May 8, 2015, the Commission sent a letter to Respondent, informing her of Mr. Lal's complaint and requesting a written response and a copy of Mr. Lal's file.

Investigator Ramsey met with Respondent on or about June 4, 2015. At that time, Investigator Ramsey hand-delivered to Ms. Plank a copy of Mr. Lal's complaint and Petitioner's letter of May 8, 2015. Investigator Ramsey reiterated to Respondent that she was required to respond in writing to the Commission's letter. Ms. Plank never provided a written response.

In addition, during the meeting with Investigator Ramsey, *⁴⁵⁴ Respondent falsely represented that she had Mr. Lal's debt collection case transferred from Baltimore County to Washington County. [ ] Respondent also stated that the check from Mr. Lal was deposited into an attorney trust account. In fact, a copy of the check confirmed that the check was endorsed over to a third party and never deposited as claimed by Ms. Plank. 4. Wheat Complaint Scott B. Wheat, Esquire ("Mr. Wheat") represented Plaintiff CACH, LLC in the Lal collection case. As already mentioned, in that case, Ms. Plank failed to propound discovery in a timely manner and failed to obtain court approval to allow the late filing.

When Mr. Wheat refused to respond to the untimely discovery requests, Ms. Plank threatened to bring disciplinary action against him. During the course of the case, Mr. Wheat received forwarded emails from Respondent that involved communications between Mr. Lal and her-privileged and confidential information. In another matter in which both Mr. Wheat and Ms. Plank were involved, CACH, LLC v. Allen , Respondent filed a Line Withdrawing Entry of Appearance, which did not conform with the Maryland Rules. The Commission notified Respondent of Mr. Wheat's complaint by letter dated July 9, 2015.

The letter required a written response within 15 days; Respondent failed to comply. Petition II 1. Porter Complaint In August 2015, Respondent, while employed by a law firm ("the firm") in Texas, met with one of the firm's clients, Linda Ann Porter ("Ms. Porter"). [ ] ] The firm represented Ms. Porter as a plaintiff in a suit filed in the United States ⁸⁹³ District Court for the Southern District of Texas. At some time in August 2015, Respondent encouraged Ms. Porter to discharge the firm and engage Respondent to represent her.

On or about August 20, 2015, Ms. Porter, in *⁴⁵⁵ fact, retained Respondent who, by this time, was no longer affiliated with the firm. While in Texas, Respondent published documents on letterhead from the "Law Office of Elizabeth Plank" and listed a Houston, Texas address. There was no indication on these documents, however, that Ms. Plank was not authorized to practice law in Texas or that her participation would be limited to serving in a non-lawyer capacity. Respondent held herself out as being authorized to practice law in Texas.

Upon engagement, Ms. Porter paid Respondent a fee of $1,500 and agreed to a contingency fee of 20% of any and all recoveries resulting from the suit. The agreement was outlined in a document titled Engagement Letter and Fee Agreement . Ms. Porter paid Respondent the $1,500. Ms. Plank, however, failed to place the payment in an attorney trust account, and failed to obtain Ms. Porter's consent to deposit the money elsewhere.

Ms. Plank did not withdraw properly the fees as earned. At some point during this representation, Ms. Plank falsely represented to Ms. Porter that her $1,500 check was refused by the bank. Ms. Porter issued another check for $1,500. After learning of the double payment, Ms. Porter demanded a refund from Respondent, but she refused.

Respondent, in fact, sought additional payment for her services. The requested payments were not contemplated by the Engagement Letter and Fee Arrangement . Ms. Porter declined to make additional payments to Ms. Plank. Thereafter, Respondent abandoned the representation of Ms. Porter without notice and without sufficient time for another attorney to be engaged.

Moreover, Respondent refused to refund any of the unearned fees. In addition, Ms. Plank, after being requested to do so, failed to supply Ms. Porter with documents pertaining to her representation. On or about September 1, 2015, Respondent filed a Motion for Withdrawal of Counsel on Behalf of Plaintiff, Linda Ann Porter without the authorization of Ms. Porter. In the Motion, Respondent falsely represented that Ms. Porter had failed to pay attorney's fees.

To the contrary, Ms. Porter *⁴⁵⁶ had paid all of fees called for in the Engagement Letter and Fee Arrangement . Respondent failed to respond to the Commission's multiple demands for a response to the complaint of Ms. Porter. Judge Ensor concluded 3 that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.5(a) (fees); 1.6 (confidentiality of information); 1.15(a) and (c) (safekeeping property); 1.16(d) (declining or terminating representation); 3.3(a) (candor toward the tribunal); 5.5(a) (unauthorized practice of law; multijurisdictional practice of law); 7.1(a) (communications concerning a lawyer's services); 8.1 (bar admission and disciplinary matters); and 8.4(b), (c), and (d) (misconduct): 4 ⁸⁹⁴ 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 1.3 Diligence A lawyer shall act with reasonable diligence and promptness in representing a client. [The hearing court] finds, by clear and convincing evidence, that Respondent violated MLRPC 1.1 and 1.3.

Respondent failed to provide competent representation and failed to act with reasonable diligence and promptness in representing Mr. Jones. Respondent failed to follow the instructions of her client and incorrectly filed a bankruptcy petition under Chapter 13 of the Bankruptcy Code. Respondent made matters worse when she filed a separate petition under Chapter 7, instead of simply correcting her error. *⁴⁵⁷ Respondent failed to inform the Bankruptcy Court of her error and Mr. Jones' petition was dismissed. Respondent failed to appear for a hearing and failed to reschedule the matter promptly, despite having told Mr. Jones that she would.

Respondent's conduct demonstrated a lack of legal knowledge, skill, thoroughness or preparation reasonably necessary to represent Mr. Jones. 1.4 Communication (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) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. [The hearing court] finds, by clear and convincing evidence, that Respondent violated MLRPC 1.4. Respondent failed to keep Mr. Jones reasonably informed about the status of his case. She failed to reschedule a missed hearing date.

Respondent failed to withdraw the incorrectly filed Chapter 13 bankruptcy petition, a fact of which Mr. Jones was made aware by his subsequent attorney. Mr. Jones was not informed that Respondent was abandoning the representation. 1.5 Fees *⁴⁵⁸ (a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.... [The hearing court] finds, by clear and convincing evidence, that Respondent violated MLRPC 1.5 in her representation of Mr. Jones, Mr. Lal, and Ms. Porter. It is well established that a fee arrangement is unreasonable when a lawyer fails to provide any meaningful work in exchange for the fees. See Attorney Grievance Comm'n v. Chapman , 430 Md. 238 , 275-76, 60 A.3d 25 , 48 (2013) ⁸⁹⁵ (internal citation omitted).

With respect to Mr. Jones, Respondent incorrectly filed a petition for bankruptcy under Chapter 13, and compounded the error by filing another petition under Chapter 7. Respondent failed to reschedule a missed hearing or communicate with Mr. Jones about rescheduling the hearing. Respondent sought the assistance of another attorney and paralegal as she did not have the necessary software for the court filings. Respondent's representation of Mr. Jones provided no value to him and was not meaningful.

Initially, Mr. Lal paid Respondent $1,500. Respondent subsequently tried to induce Mr. Lal, by the use of threats and false information, to make additional payments for her representation. Mr. Lal, ultimately, settled the case without the assistance of Respondent. Mr. Lal received no meaningful representation or legal services in return for the $1,500 he paid.

Respondent initially was paid $1,500 by Ms. Porter. Respondent then induced Ms. Porter to make another payment of $1,500. When Ms. Porter learned of the double payment, she requested that Respondent refund $1,500. Respondent did not return the payment and did not earn the fee charged. 1.6