Attorney Grievance Comm'n of Md. v. Thompson

Hotten, J. On December 20, 2017, the Attorney Grievance Commission of Maryland, acting through Bar Counsel ("Petitioner"), filed a Petition for Disciplinary or Remedial Action against Yolanda Massaabioseh Thompson ("Respondent"). The misconduct stemmed from Respondent's representation of a former client, Ms. Norma Jean Bess. Specifically, Petitioner alleged that Respondent failed to represent Ms. Bess competently and diligently, failed to communicate with Ms. Bess regarding the status of her matter, failed to refund unearned fees in Ms. Bess's matter, failed to safeguard client funds, abandoned Ms. Bess's matter, practiced in a jurisdiction where she was not authorized to practice law, made a knowingly false statement of material fact, and failed to respond to lawful demands for information during Petitioner's investigation. Based on the misconduct, Petitioner alleged violations of Maryland Attorneys' Rules of Professional Conduct ("MARPC") 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5(a) (Fees), 19-301.15(a), (b), (c), and (d) (Safekeeping Property), 19-301.16(d) (Declining or Terminating Representation), 19-305.5(b) (Unauthorized Practice of Law), 19-308.1(a) and (b) (Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct). 1 On December 21, 2017, this Court transferred the matter to Judge Stacy Wiederle McCormack ("the hearing judge") of the Circuit Court for Anne Arundel County, to conduct an evidentiary hearing ("the hearing").

On January 11, 2018, Respondent was served with original process, Petitioner's Interrogatories, Petitioner's Request for Production of Documents, and Petitioner's Request for Admission of Facts and Genuineness of Documents. On February 12, 2018, no answer having been filed, Petitioner filed a Motion for Order of Default. Respondent failed to respond. On February 20, 2018, the circuit court entered an Order of Default and scheduled the matter for a hearing on March 9, 2018.

Respondent did not move to vacate the Order of Default and failed to respond to Petitioner's discovery. Pursuant to Maryland Rule 2-424(b), 2 Petitioner's Requests for Admission were deemed admitted. Respondent failed to appear for the hearing scheduled on March 9. THE HEARING JUDGE'S FINDINGS OF FACT We summarize the hearing judge's findings of fact.

Respondent was admitted to the Bar of the District of Columbia on February 6, 2012 and the United States District Court for the District of Columbia on November 7, 2016. Respondent is not a member of the Bar of Maryland, nor a member of the United States District Court for the District of Maryland. Respondent maintained an office for the practice of law in Montgomery County, Maryland. Respondent maintained a mail drop address at 13842 Outlet Drive, # A161, Silver Spring, Maryland 20904 and resided at 3407 Hampton Hollow Drive, # G, Silver Spring, Maryland 20904.

Respondent registered her home address with the District of Columbia Bar. The hearing judge found that Respondent maintained a systematic and continuous legal practice at 13842 Outlet Drive, # A161 and 3407 Hampton Hollow Drive, # G in Maryland from March 28, 2014 through the present. On August 10, 2016, Respondent caused an overdraft on her attorney trust account (ending 3432) at TD Bank located in Silver Spring, Maryland in the amount of $116.32. On October 3, 2016, Respondent caused another overdraft on her attorney trust account in the amount of $63.49.

On November 23, 2016, Petitioner wrote to Respondent and requested that Respondent provide copies of her client ledgers, deposit slips, cancelled checks, and monthly bank statements. The requested information and documentation was to be provided within ten days, but Respondent failed to respond. On January 6, 2017, Petitioner wrote to Respondent again, enclosed a copy of the November 23, 2016 letter, and requested a response upon receipt. Respondent failed to respond.

On March 7, 2017, Petitioner wrote to Respondent a third time and enclosed copies of the previous correspondence. Petitioner advised Respondent that the matter had been docketed for further investigation and requested a response within ten days. Respondent failed to respond. On April 26, 2017, having received no response, Petitioner issued a subpoena directed to TD Bank for account records held in the name of the Law Office of Yolanda M. Thompson and Respondent for the period of May 1, 2016 through the date of the subpoena.

On May 5, 2017, Jason P. Bogue, investigator for the Attorney Grievance Commission, traveled to Respondent's home address. Respondent's mother answered the door and indicated that Respondent was not home. Mr. Bogue provided Respondent's mother with his business card and requested that she ask Respondent to contact him. That same day, Respondent called Mr. Bogue and advised that she had closed her attorney trust account in October 2016.

She also stated that she exclusively handled bankruptcy matters and therefore, did not have use for an attorney trust account. The hearing judge found that "Respondent's statement, that she exclusively handled bankruptcy matters, was knowingly and intentionally false." Respondent has not represented clients in bankruptcy matters, though she has represented clients in two immigration matters with the United States Citizenship and Immigration Services. Respondent provided her address at 13842 Outlet Drive in each of those filings. The hearing judge found that Respondent's false statement to Petitioner was material, as it was made in an effort to minimize Petitioner's concerns about the overdraft of Respondent's attorney trust account and the unauthorized practice of law in Maryland.

During Respondent's May 5 telephone call with Mr. Bogue, Respondent confirmed that she had received Petitioner's letters dated November 23, 2016, January 6, 2017, and March 7, 2017. Respondent indicated that she would respond to Petitioner in writing that day, but failed to do so. On May 9, 2017, Mr. Bogue served Respondent with a copy of the subpoena directed to TD Bank and copies of Petitioner's previous correspondence. At that time, Respondent confirmed that the address at 3407 Hampton Hollow Drive, Silver Spring, Maryland was correct.

Respondent further advised Mr. Bogue that she would be "formulating" a response to the letters that day. Respondent failed to respond. On May 16, 2017, Petitioner wrote to Respondent at her home address and the address at 13842 Outlet Drive. Petitioner again requested Respondent's written response to its prior letters and provided Respondent seven days to respond.

Respondent failed to respond to this letter or any of Petitioner's prior requests for information. On May 26, 2017, Petitioner received documents from TD Bank in response to the subpoena. Charles E. Miller, IV, an investigator for the Attorney Grievance Commission, performed an analysis of the account records. Respondent's Bank Account Transactions On March 28, 2014, Respondent opened an attorney trust account with TD Bank ending in 3432 in the name of the Law Office of Yolanda M. Thompson.

She provided a legal address of Outlet Drive, # A161, Silver Spring, MD 20904. Respondent opened a personal account with TD Bank, account number ending 4270, on February 24, 2016. Respondent provided a mailing address of 3407 Hampton Hollow Drive, Apt. G, Silver Spring, Maryland 20904 for the personal account.

From May 2016 to October 2016, Respondent received prepaid legal fees and other funds from clients and third persons. The hearing judge found that Respondent failed to safekeep those funds until the fees were earned or expenses incurred. On May 19, 2016, Respondent deposited a check from clients Lester Mack and Sarankay Mack in the amount of $1,000 into her attorney trust account. On June 15, 2016, Respondent deposited a check from client Norma Jean Bess in the amount of $200.00 with memo "legal services." 3 Additionally, Respondent deposited personal funds into her trust account, including several deposits from "Synergy LE" totaling $4,462.47, two deposits from "System One" totaling $1,180.86, and numerous deposits from "ARTECH" totaling $7,563.09.

On October 3, 2016, Respondent caused a negative balance in her attorney trust account in the amount of -$63.49 following a disbursement of cash in the amount of $80.00. On October 5, 2016, Respondent made a cash deposit of personal funds in the amount of $100 into her attorney trust account. On October 24, 2016, Respondent closed her attorney trust account, withdrew all remaining funds in the account in the amount of $1,585.96, including interest in the amount of $ 0.46, to which she was not entitled. On October 25, 2016, Respondent closed her personal account (ending 4270).

The hearing judge found that Respondent failed to segregate the funds of clients and third persons in her possession from her own personal funds. The hearing judge also found that Respondent used the funds of clients and third persons for her own use and benefit, regularly and improperly withdrawing funds through cash disbursements and personal purchases. From May 2016 to October 2016, Respondent made approximately seventy-five cash disbursements from her attorney trust account. Respondent also made several other disbursements from her attorney trust account including payments to Verizon and life insurance premium payments.

On February 16, 2017, Respondent opened a new personal account with TD Bank, account number ending 6871, and included as a mailing address for that account 3407 Hampton Hollow Drive, Apt. G, Silver Spring, Maryland 20904. From February through April 2017, Respondent deposited multiple checks from one or more clients or third parties directly into that personal account including, but not limited to the following: (i) a check from TIAA in the amount of $2,300 on February 16, 2017; (ii) a check from Hanna Rachel Davies 4 in the amount of $300 on February 25, 2017; and (iii) a check from client Victorine Enterprise LLC 5 in the amount of $300 with memo "Fees [illegible]" on March 28. Representation of Norma Jean Bates Petitioner conducted additional investigation of the payment in the amount of $200 from client Norma Jean Bess to Respondent.

Ms. Bess, a District of Columbia resident, retained Respondent to draft two letters in connection with a family matter for $100 per letter. Though Ms. Bess paid Respondent an advance fee of $200, Respondent only drafted one of the two letters. On June 15, 2016, Respondent deposited Ms. Bess's check into her attorney trust account and immediately withdrew $20 in cash. Respondent made numerous other cash withdrawals until Respondent's bank account reached a balance of $12.34 at the end of June 2016.

Ms. Bess did not authorize Respondent to withdraw the advance fee of $200 prior to earning the fee in full. Ms. Bess called Respondent multiple times regarding the status of a refund for the second letter. Respondent failed to respond to the calls and failed to refund the amount owed to Ms. Bess. At the time that Respondent represented Ms. Bess, Respondent advised her client that she practiced from her home in Maryland.

THE HEARING JUDGE'S CONCLUSIONS OF LAW Based on the aforementioned findings of fact, the hearing judge concluded that the evidence concerning Respondent's representation of Ms. Bess established violations of MARPC 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5(a) (Fees), 19-301.15(a), (b), (c), and (d) (Safekeeping Property), 19-301.16(d) (Declining or Terminating Representation), 19-305.5(b) (Unauthorized Practice of Law), 19-308.1(a) and (b) (Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct). The following are summaries of the relevant MARPC and the hearing judge's reasoning for concluding Respondent violated each part. Rule 19-301.1 Competence (1.1) An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Respondent failed to provide competent representation to her client, Norma Jean Bess. In Attorney Grievance Commission v. Brown , 426 Md. 298 , 319, 44 A.3d 344 , 357 (2012), this Court held that an attorney violates Rule 19-301.1 when the attorney fails to act in a timely manner that results in harm to clients. Ms. Bess asked Respondent to draft two letters for a family matter for $100 per letter. Respondent drafted only one of the two letters for which Respondent was compensated.

Respondent did not respond to Ms. Bess's inquiries regarding the status of the second letter, resulting in a lack of competent representation. Rule 19-301.3 Diligence (1.3) An attorney shall act with reasonable diligence and promptness in representing a client. Respondent failed to keep Ms. Bess informed about the status of her second letter, constituting a lack of reasonable diligence and promptness. Failing to keep a client informed as to the status of the case and failing to respond to the client's inquiries violates Rule 19-301.3.

See Attorney Grievance Commission v. Park, 427 Md. 180 , 192, 46 A.3d 1153 , 1160 (2012) (holding that "Respondent's failure to keep [clients] informed as to the status of [their immigration] applications and [Respondent's] failure to respond to the [clients'] inquiries both violate[d] [MARPC 19-301.3]."). Rule 19-301.4 Communication (1.4) (a) An attorney shall: (1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 19-301.0(f) (1.0), 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 attorney's conduct when the attorney knows that the client expects assistance not permitted by the Maryland Attorneys' 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. Paragraphs (a)(2) and (3) of this Rule, respectively, require a lawyer to keep the client "reasonably informed" about the status of the case, and to promptly respond to reasonable requests for information.

Attorney Grievance Commission v. Van Nelson , 425 Md. 344 , 354-55, 40 A.3d 1039 , 1045 (2012). Respondent failed to keep Ms. Bess informed regarding the status of the second of two letters Ms. Bess retained her to draft. Respondent further violated Rule 19-301.4 by failing to respond to Ms. Bess's multiple attempts to contact Respondent to obtain the status of the second letter. Rule 19-301.5 Fees (1.5) (a) An attorney shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses....

Respondent failed to earn the legal fee associated with drafting Ms. Bess's second letter. The reasonableness of a fee is not measured solely by examining its value at the outset of the representation; an otherwise reasonable fee can become unreasonable if the lawyer fails to earn it. Attorney Grievance Commission v. Garrett, 427 Md. 209 , 224, 46 A.3d 1169 , 1178 (2012) (citing Attorney Grievance Commission v. Brady, 422 Md. 441 , 458, 30 A.3d 902 , 912 (2011) (holding that a reasonable fee became unreasonable when respondent-attorney neglected the client's matter and abandoned the client's representation) ); see also Attorney Grievance Commission v. Patterson, 421 Md. 708 , 732, 28 A.3d 1196 , 1210 (2011) (holding that a reasonable fee became unreasonable due to respondent-attorney's lacking competence and diligence when representing the client). Respondent violated Rule 19-301.5(a) when she abandoned Ms. Bess's matter before drafting the second of two letters.

Respondent failed to refund the $100 for the second letter. Rule 19-301.15 Safekeeping Property (1.15) (a) An attorney shall hold property of clients or third persons that is in an attorney's possession in connection with a representation separate from the attorney's own property. Funds shall be kept in a separate account maintained pursuant to Title 19, Chapter 400 of the Maryland Rules, and records shall be created and maintained in accordance with the Rules in that Chapter. Other property shall be identified specifically as such and appropriately safeguarded, and records of its receipt and distribution shall be created and maintained.

Complete records of the account funds and of other property shall be kept by the attorney and shall be preserved for a period of at least five years after the date the record was created. (b) An attorney may deposit the attorney's own funds in a client trust account only as permitted by Rule 19-408 (b). (c) Unless the client gives informed consent, confirmed in writing, to a different arrangement, an attorney shall deposit legal fees and expenses that have been paid in advance into a client trust account and may withdraw those funds for the attorney's own benefit only as fees are earned or expenses incurred. (d) Upon receiving funds or other property in which a client or third person has an interest, an attorney shall promptly notify the client or third person.

Except as stated in this Rule or otherwise permitted by law or by agreement with the client, an attorney shall deliver promptly to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall render promptly a full accounting regarding such property. * * * In Attorney Grievance Commission v. Hamilton , 444 Md. 163 , 188, 118 A.3d 958 , 972 (2015), this Court explained that "[MARPC 19-301.15(a) ] requires attorneys to keep the property of clients separate from the lawyer's own property. When the property is money, it must be held in a separate account pursuant to [Title 19, Chapter 403] of the Maryland Rules." (footnote omitted). Respondent violated Rule 19-301.15(a) when she failed to keep the client funds of the Macks, Ms. Bess, Ms. Davies, and Victorine Enterprises, LLC separate from her own personals funds and when she deposited client checks from Ms. Davies and Victorine Enterprises, LLC directly into her personal account. Respondent violated Rule 19-301.15(b) by depositing personal funds into her attorney trust account.

Respondent deposited checks into her attorney trust account from "Synergy," "System One," and "ARTECH." Respondent violated Rule 19-301.15(b) by depositing personal funds from these entities into her attorney trust account. Respondent violated Rule 19-301.15(c) by failing to maintain advance legal fees in her attorney trust account until earned. Respondent withdrew Ms. Bess's $200 advance fee prior to earning it in full. Respondent also violated Rule 19-301.15(d).

When Ms. Bess attempted to contact Respondent to obtain the status of her matter, Respondent failed to respond to Ms. Bess or otherwise provide an accounting of the funds. Respondent failed to return the portion of the funds to which Ms. Bess was entitled. Rule 19-301.16 Declining or Terminating Representation (1.16) * * * (d) Upon termination of representation, an attorney 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 another attorney, 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 attorney may retain papers relating to the client to the extent permitted by other law.

In Attorney Grievance Commission v. Logan, 390 Md. 313 , 318-19, 888 A.2d 359 , 362-63 (2005), this Court held that attorneys violate Rule 19-301.16(d) when they abandon their representation of clients, refuse to return client paperwork, and refuse to engage in further communications. Respondent violated Rule 19-301.16(d) when she abandoned Ms. Bess's matter without refunding any portion of her advance payment. Rule 19-305.5 Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law (5.5) (b) An attorney who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the attorney is admitted to practice law in this jurisdiction. * * * Respondent violated Rule 19-305.5(b)(1) because she maintained a systematic and continuous legal practice in Maryland for the practice of law, as reflected by several factors. Respondent maintained an office for the practice of law in Montgomery County, Maryland through the use of her home address at 3407 Hampton Hollow Drive, # G, Silver Spring, Maryland, 20904, and a mail drop address at 13842 Outlet Drive, # A161, Silver Spring, Maryland, 20904.

Between March 28, 2014, and October 25, 2016, Respondent maintained an attorney trust account and a personal account with TD Bank, both of which were affiliated with Maryland mailing addresses. From February through April 2017, Respondent deposited multiple checks from one or more clients or third parties into her personal account with TD Bank, account number ending 6871. Though Respondent claimed that she was practicing exclusively in the area of bankruptcy law, the record reflects an absence of Respondent's appearance in any bankruptcy matters. Respondent represented Ms. Bess in a family matter and Victorine Enterprises, the Macks and Ms. Davies in other matters.

Respondent violated Rule 19-305.5(b)(2) because she held out to the public that she was entitled to practice law in Maryland, when she was solely licensed in the District of Columbia. Respondent registered her Maryland addresses with TD Bank, told Ms. Bess that she practiced from her home in Maryland, and was retained by Victorine Enterprises LLC, an active Maryland business entity that paid Respondent $300 in legal fees. Respondent does not maintain an office in the District of Columbia, where she is entitled to practice. As such, Respondent violated Rule 19-305.5(b)(2).

Rule 19-308.1 Bar Admission and Disciplinary Matters (8.1) An applicant for admission or reinstatement to the bar, or an attorney in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 19-301.6 (1.6). Respondent violated Rule 19-308.1(a) and (b) because she misrepresented her area of legal practice during Petitioner's investigation and repeatedly failed to respond to Petitioner's requests for information. When Petitioner notified Respondent of its investigation, Respondent knowingly made a false statement that she exclusively handles bankruptcy matters in violation of Rule 19-308.1(a). This was a false statement of material fact because it was intended to minimize Petitioner's concerns about Respondent's attorney trust account practices and continuous presence in Maryland.

During Petitioner's investigation, Respondent continuously failed to respond to lawful requests for information in violation of Rule 19-308.1(b). Rule 19-308.4 Misconduct (8.4) It is professional misconduct for an attorney to: (a) violate or attempt to violate the Maryland Attorneys' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; * * * (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice[.] * * * It is a violation of Rule 19-308.4(a) for an attorney to violate or attempt to violate any of the Rules. Because Respondent has violated Rules 19-301.3, 19-301.4, 19-301.5(a), 19-301.15(a), (b), (c), and (d), 19-301.16(d), 19-305.5(b), 19-308.1(a) and (b), and 19-308.4(a), (c), and (d), it follows that she has violated Rule 19-308.4(a). Respondent violated Rule 19-308.4(c) for the same reason that she violated Rule 19-308.1(a): Respondent misrepresented her area of practice by claiming she exclusively handled bankruptcy matters.

Respondent also violated Rule 19-308.4(c) when she abandoned Ms. Bess's matter and took the full amount of Ms. Bess's advance fee. In Attorney Grievance Comm'n v. Rose , 391 Md. 101 , 892 A.2d 469 (2006), this Court held that an attorney's failure to promptly, completely and truthfully respond to Bar Counsel's requests for information, to keep his client advised of the status of the representation and to diligently represent the complainant constitutes conduct which tends to bring the legal profession into disrepute and is therefore prejudicial to the administration of justice. Id. at 111 , 892 A.2d at 475 . Respondent repeatedly failed to respond to requests for information and did not keep her client apprised of her matter in violation of Rule 19-308.4(d).

Furthermore, Respondent's conduct, taken as a whole, brings the profession into disrepute and is prejudicial to the administration of justice. Aggravating and Mitigating Factors This Court has identified aggravating factors it will consider in determining a sanction. The Attorney Grievance Commission has the burden of proving these factors by clear and convincing evidence. Md. Rule 19-727(c).

In Attorney Grievance Commission of Maryland v. Shuler , 443 Md. 494 , 506-07, 117 A.3d 38 , 46 (2015), this Court explained that the following aggravating factors should be considered: (1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple violations of the [MARPC]; (5) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with the Maryland Rules or orders of this Court or the hearing judge; (6) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (7) a refusal to acknowledge the misconduct's wrongful nature; (8) the victim's vulnerability; (9) substantial experience in the practice of law; (10) indifference to making restitution or rectifying the misconduct's consequences; (11) illegal conduct, including that involving the use of controlled substances; and (12) likelihood of repetition of the misconduct. As for the aggravating factors, the hearing judge concluded that factors two, four, five, six, seven, ten, and twelve were present. This Court has also identified mitigating factors that it will consider in determining a sanction. Respondent has the burden of establishing these factors by a preponderance of the evidence.

Md. Rule 19-727(c). Mitigating factors include the following: Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free