Attorney Grievance Comm'n v. Jones

Attorney Grievance Commission of Maryland v. Gregory Wayne Jones, AG No. 1, September Term, 2021. Opinion by Biran, J. ATTORNEY DISCIPLINE – SANCTION – SUSPENSION STAYED IN FAVOR OF PROBATION – The Supreme Court of Maryland sanctioned an attorney with a 90-day suspension, stayed in favor of a 12-month probationary period with conditions, for filing a plea in a criminal case without his client’s knowledge or consent, failing to act with diligence and competence in two client matters, and charging and retaining unreasonable flat fees. Such conduct violated Maryland Attorneys’ Rules of Professional Conduct 19-301.1 (Competence), 19-301.2 (Scope of Representation and Allocation of Authority Between Client and Attorney), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.15 (Safekeeping of Property), 19-301.16 (Declining or Terminating Representation), and 19-308.4 (Misconduct). Circuit Court for Baltimore City Case No. 24-C-21-001414 Argued: November 4, 2022 IN THE SUPREME COURT OF MARYLAND* AG No. 1 September Term, 2021 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. GREGORY WAYNE JONES Fader, C.J. Watts Hotten Booth Biran Gould Eaves, JJ.

Opinion by Biran, J. Filed: July 12, 2023 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on Gregory Hilton, Clerk December 14, 2022. On March 8, 2021, Petitioner, the Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (the “PDRA”) alleging that Respondent, Gregory Wayne Jones, violated several of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”). On September 9, 2021, the Commission filed an Amended Petition for Disciplinary or Remedial Action (the “Amended PDRA”), alleging that Mr. Jones violated the following rules:1 1.1 (Competence); 1.2 (Scope of Representation and Allocation of Authority Between Client and Attorney); 1.3 (Diligence); 1.4 (Communication); 1.5 (Fees); 1.15 (Safekeeping Property); 1.16 (Declining or Terminating Representation); 8.1 (Bar Admission and Disciplinary Matters);2 and 8.4 (Misconduct).

This Court designated the Honorable Dana M. Middleton of the Circuit Court for Baltimore City (the “hearing judge”) to conduct an evidentiary hearing on the alleged rules violations. That hearing went forward on May 20 and May 23, 2022. On July 7, 2022, the hearing judge issued Findings of Fact and Conclusions of Law, finding by clear and convincing evidence that Mr. Jones violated the MARPC, as alleged by Bar Counsel. As detailed below, we conclude that Mr. Jones violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16, 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct, which employed the numbering format of the American Bar Association Model Rules, were renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) and recodified without substantive modification in Title 19, Chapter 300 of the Maryland Rules.

For ease of reference and comparison with our prior opinions and those of other courts, we will refer to the MARPC using the numbering of the model rules, as permitted by Maryland Rule 19-300.1(22). 2 Following the hearing in this matter, Bar Counsel withdrew the allegation that Mr. Jones violated Rule 8.1. and 8.4, and determine that a 90-day suspension, stayed in favor of 12 months of probation with conditions, is the appropriate sanction. I The Hearing Judge’s Findings of Fact and Conclusions of Law A. Factual Findings We summarize here the hearing judge’s findings of fact. Background Mr. Jones was admitted to the Maryland Bar on February 4, 2010. Mr. Jones operates a solo law office in Baltimore City.

Representation of Rick’kell Johnson Rick’kell Johnson hired Mr. Jones to represent him in relation to charges stemming from a traffic stop that occurred on February 6, 2017. Mr. Johnson was charged in the District Court of Maryland in Allegany County with operating an unregistered motor vehicle, unauthorized use of a license plate, and knowingly driving an uninsured vehicle. He received three citations in relation to these traffic violations. Additionally, Mr. Johnson was charged in the District Court with criminal violations, including possession with the intent to distribute a controlled dangerous substance, possession of a controlled dangerous substance – not marijuana, possession of paraphernalia, and obstruction of justice.

State v. Johnson, Case No. 6W0007646. The District Court scheduled a trial date of March 3, 2017, for the criminal violations and a separate trial date of May 9, 2017, for the traffic violations. Mr. Johnson retained Mr. Jones on February 23, 2017, seeking representation in both the traffic and criminal matters. Mr. Johnson signed Mr. Jones’s “Legal 2 Representation Agreement.” This agreement stated that Mr. Johnson was required to pay a “non-refundable engagement fee in the amount of $4,000” before Mr. Jones would begin to “work or enter [his] appearance in the case.” The agreement stated that the engagement fee “is earned when received and is non-refundable.” The agreement also stated that Mr. Johnson would pay an additional $4,000 flat fee for the representation.

According to the terms of the agreement, this flat fee was “fully earned upon receipt.” The agreement further stated that the flat fee payments would be placed in Mr. Jones’s “Operating Account,” rather than his “Escrow Account,” and thus would “becom[e] property of [Mr. Jones].” At the outset of the representation, based upon the information that Mr. Jones had received from Mr. Johnson, Mr. Jones incorrectly believed that the traffic offenses were included in the criminal case. Prior to Mr. Johnson’s initial appearance in his criminal case on March 3, 2017, Mr. Johnson had not yet paid any fees to Mr. Jones. For this reason, Mr. Jones did not enter his appearance in the criminal case or appear on Mr. Johnson’s behalf at the March 3 hearing. Mr. Johnson appeared pro se at the March 3 hearing, and the District Court granted Mr. Johnson’s request for a postponement in order to retain an attorney.

Soon afterwards, Mr. Johnson began to make payments toward Mr. Jones’s flat fee. On March 7, 2017, Mr. Johnson paid Mr. Jones $300, and on March 24, 2017, he paid Mr. Jones $800. Mr. Jones deposited both of these payments into his operating account. Mr. Johnson then paid an additional $500 on April 28, 2017, bringing his total payment to Mr. Jones to $1,600. 3 On April 27, 2017, Mr. Johnson’s criminal case was transferred to the Circuit Court for Allegany County.

An initial hearing was set for June 27, 2017. On May 1, 2017, Mr. Jones contacted the Clerk of the District Court and asked about the status of Mr. Johnson’s criminal case. The Clerk incorrectly told Mr. Jones that the criminal case had been dismissed.3 In fact, the criminal case only appeared closed because it had been transferred to the Circuit Court and assigned a new case number. See State v. Johnson, No. 01-K-17- 018467.

In this May 1 conversation, the Clerk did not mention the traffic charges because they were not part of the criminal case. Mr. Jones incorrectly believed that the traffic and criminal cases had been filed together, so he believed that the traffic case was closed as well, when in fact the trial on the traffic charges remained scheduled for May 9, 2017, in the District Court. Mr. Jones subsequently informed Mr. Johnson that his case had been dismissed. Due to Mr. Jones’s misunderstanding regarding the status of the traffic charges, Mr. Johnson did not appear for the trial in his traffic case on May 9, 2017.

The District Court issued a bench warrant for Mr. Johnson’s arrest. Mr. Johnson contacted Mr. Jones when he received notice of the warrant, and Mr. Jones promptly filed a motion to recall the warrant. In this motion, Mr. Jones explained that he had misinformed Mr. Johnson and was 3 The hearing judge did not expressly find that the Clerk told Mr. Jones the case had been dismissed, but this is the clear implication of the hearing judge’s findings regarding the May 1 conversation between Mr. Jones and the Clerk of the District Court. Moreover, in Mr. Jones’s Conditional Diversion Agreement (“CDA”), which we discuss below, Bar Counsel and Mr. Jones agreed that, during his conversation with the Clerk on May 1, 2017, Mr. Jones “was incorrectly informed that the drug charges against [Mr. Johnson] had been dropped.” The hearing judge cited this page of the CDA in her Findings of Fact when discussing Mr. Jones’s May 1, 2017 conversation with the Clerk. 4 responsible for Mr. Johnson’s failure to appear.

On June 22, 2017, the District Court granted the motion and recalled the warrant. The court set a new trial date for the traffic case for September 25, 2017. This was the first time that Mr. Jones understood that the traffic and criminal cases were separate. After discussing his previous misunderstanding with Mr. Johnson, Mr. Jones was convinced that Mr. Johnson understood that Mr. Jones was only representing him in the criminal case in the Circuit Court.

However, Mr. Johnson believed that Mr. Jones was representing him in both the criminal case in the Circuit Court and the traffic case in the District Court. Meanwhile, Mr. Johnson continued to make payments toward the $4,000 fee. He paid Mr. Jones $500 on June 12, 2017, bringing his total payments to $2,100. Again, Mr. Jones deposited the funds in his operating account.

At the June 27, 2017 status hearing in the criminal case, Mr. Jones did not appear because the flat fee still was not paid in full. The circuit court set the next status hearing for October 10, 2017, and scheduled the jury trial for October 11, 2017. On September 1, 2017, Mr. Johnson paid Mr. Jones the remaining balance for his $4,000 flat fee, which Mr. Jones deposited into his operating account. At the time of that final payment, Mr. Johnson still expected that Mr. Jones would enter his appearance in both the criminal and traffic cases.4 4 Although the hearing judge did not state in her findings how the misunderstanding regarding Mr. Jones’s representation of Mr. Johnson in the traffic case was resolved, it is undisputed that an Assistant Public Defender entered her appearance on behalf of Mr. 5 On October 2, 2017, Mr. Jones entered his appearance in the criminal case and filed discovery requests.

On October 5, 2017, Mr. Jones served a Motion to Compel Discovery and a Request for Continuance based on the State’s failure to provide discovery. However, the court did not receive Mr. Jones’s continuance request in time for the October 10 status hearing, so no continuance was granted. Mr. Jones failed to appear at the October 10 hearing due to car trouble. Mr. Jones informed Mr. Johnson and the court that his car had broken down and that he would be unable to travel from Baltimore to Cumberland to attend the hearing.

Mr. Johnson appeared on his own at the hearing and requested a postponement, which the court granted. The court postponed Mr. Johnson’s trial until November 28, 2017. After the status hearing, Mr. Johnson expressed dissatisfaction with Mr. Jones’s representation and requested a copy of his file, as well as a refund of the $4,000 fee. Mr. Jones declined to refund the fee based on the terms of the Legal Representation Agreement.

Mr. Jones also failed to provide Mr. Johnson with a copy of his file. Mr. Jones continued the representation of Mr. Johnson, negotiating a plea agreement with the State’s Attorney, which was placed on the record on November 28, 2017. The court accepted the plea agreement and placed Mr. Johnson’s case on the stet docket. On November 9, 2017 (i.e., prior to Mr. Johnson resolving the criminal case with the stet disposition), Mr. Johnson filed a complaint with the Commission, claiming, among other things, that Mr. Jones failed to communicate with him and failed to appear at court Johnson in the traffic case later in September 2017.

On September 25, 2017, the State nolle prossed the traffic charges. 6 hearings. Mr. Jones did not receive notice of this complaint until after the November 28, 2017 disposition of Mr. Johnson’s case. The Conditional Diversion Agreement After conducting an investigation, Bar Counsel concluded that a Conditional Diversion Agreement (“CDA”) would be the appropriate resolution of Mr. Johnson’s allegations of professional misconduct. Mr. Jones, represented by counsel, agreed to enter into a CDA with Bar Counsel.

In the CDA, Mr. Jones admitted that, in the course of representing Mr. Johnson, he violated Rules 1.1 (Competence); 1.3 (Diligence); 1.4 (Communication); 1.5 (Fees); 1.7 (Conflict of Interest);5 1.15(a) and (c) (Safekeeping Property); 1.16 (Declining or Terminating Representation); and 8.4(a) and (d) (Misconduct). Under the CDA, Mr. Jones agreed to: (1) complete a Continuing Legal Education (CLE) course for solo practitioners and a Criminal Law CLE course within six months from the 5 Mr. Jones agreed in the CDA that he violated Rule 1.7 (Conflict of Interest) by modifying the Legal Representation Agreement with Mr. Johnson after he discovered that Mr. Johnson’s criminal and traffic cases were separate, i.e., going forward, he agreed to represent Mr. Johnson only in the criminal case. The CDA stated that Mr. Jones “failed to amend the retainer agreement or confirm his understanding in writing, and [Mr. Jones] failed to advise [Mr. Johnson] to seek independent counsel with respect to the modified agreement.” Bar Counsel did not include a charge under Rule 1.7 in either the PDRA or the Amended PDRA. Nor did the hearing judge find that Mr. Jones modified the Legal Representation Agreement after discovering that the criminal and traffic cases were separate.

However, as discussed below, the hearing judge concluded that Mr. Jones’s failure to delineate the scope of his representation in the Johnson matter violated Rule 1.2. 7 effective date of the CDA.6 The CLE courses were to be pre-approved by Bar Counsel; (2) consent to have his law practice monitored by Robert D. Cole, Jr., Esquire, for a period of one year; and (3) refund a total of $1,000 of his fee to Mr. Johnson as follows: $500 was to be refunded to Mr. Johnson within six months from the effective date of the CDA, and the balance was to be refunded to Mr. Johnson within 12 months from the effective date of the CDA. On January 25, 2020, Mr. Cole (the “Monitor”) submitted his first report to Bar Counsel and provided copies of Mr. Jones’s retainer agreements. In his report, the Monitor stated that he intended to work with Mr. Jones to improve his retainer agreements. On January 28, 2020, Bar Counsel requested that the Monitor: (1) inform Mr. Jones that his retainer agreements improperly stated that Mr. Jones’s fees were earned upon receipt and non-refundable, in violation of Rules 1.15 and 1.16(d); and (2) direct Mr. Jones to remove that language from his retainer agreements.

On June 1, 2020, a Staff Attorney in the Office of Bar Counsel emailed Mr. Jones regarding his completion of conditions of the CDA and requested: (1) proof of refund in the amount of $500 to Mr. Johnson that was due no later than May 22, 2020; (2) proof of completion of a CLE course for solo practitioners; and (3) proof of completion of a CLE course in criminal law. On June 2, 2020, Mr. Jones responded to the Staff Attorney’s email, attaching a photograph of a $500 check issued to Mr. Johnson on May 30, 2020. 6 The CDA did not define an “effective date.” However, the CDA recited that it would “remain in effect for a period of one (1) year from the date of its approval by the Commission.” The Commission approved the CDA on November 22, 2019. Thus, we conclude that the “effective date” of the CDA was November 22, 2019. 8 On July 13, 2020, Mr. Jones emailed the Office of Bar Counsel, stating that he was unable to complete the CLE requirements within the required time due to the COVID-19 crisis, the financial crisis, lack of employment, course availability, and cost. However, he explained that he had completed a CLE course on criminal law practice and procedure.

He also advised Assistant Bar Counsel that he intended to take a Maryland State Bar Association CLE course in solo law practice management when it was offered.7 Later in the day on July 13, 2020, Assistant Bar Counsel emailed a letter to Mr. Jones, stating Bar Counsel’s intent to revoke the CDA due to Mr. Jones’s failure to amend his retainer agreements as requested and his failure to timely complete the required CLE courses. Bar Counsel invited Mr. Jones “to refute Bar Counsel’s determination and/or to offer an explanation or proposed remedy satisfactory to Bar Counsel” in writing by July 24, 2020. 7 Mr. Jones sent this email to Assistant Bar Counsel at 9:30 a.m. on Monday, July 13. Although not a part of the hearing judge’s findings of fact, the record reflects that Mr. Jones’s July 13 email followed an exchange of correspondence between Assistant Bar Counsel and Mr. Jones’s former counsel, William Buie, on Friday, July 10. First, at approximately 4:50 p.m. on July 10, Assistant Bar Counsel informed Mr. Buie that she “need[ed] to send a letter to Mr. Jones regarding his non-compliance with the CDA.” Assistant Bar Counsel asked Mr. Buie whether she should send the letter to Mr. Buie or to Mr. Jones directly.

At approximately 5:30 p.m. on July 10, Mr. Buie responded that Assistant Bar Counsel should send the letter directly to Mr. Jones, as Mr. Buie was not currently representing Mr. Jones. Mr. Jones emailed Assistant Bar Counsel on the morning of Monday, July 13, prior to Assistant Bar Counsel sending the letter to Mr. Jones that she had indicated on Friday afternoon she was planning to send. 9 On September 14, 2020, Mr. Jones sent an email to Assistant Bar Counsel attaching a copy of the second $500 payment to Mr. Johnson. Mr. Jones also stated that he was awaiting an opening to take the MSBA Solo Practice Management CLE.8 On September 24, 2020, Bar Counsel filed a Petition to Revoke Conditional Diversion Agreement under Maryland Rule 19-716(h). That same day Mr. Jones sent an email to Bar Counsel, to which he attached a revised retainer agreement, and in which he requested clarification about the language Bar Counsel wanted him to modify in the retainer agreement.

He wrote: Please advise regarding the Rule of Court concerning the Engagement Fee and any relevant case law. I have attempted to seek guidance from Senior Counsel and I have sought clarification, concerning the need to change the agreement. The agreement has been in use for over ten years and is similar to Retainer Agreements used by veteran Criminal Attorneys, within my local community. Please cite so as to avoid confusion, on my part.

Mr. Jones’s revised retainer agreement still identified his fee as nonrefundable, fully earned upon receipt, and fully earned when paid. On September 28, 2020, Mr. Jones emailed Bar Counsel stating that he had substantially complied with the CDA and accusing Bar Counsel of not acting in good faith. He said: Please advise regarding the above CLE course, offered by MSBA regarding Solo Practice Management. I have received your PETITION TO REVOKE CONDITIONAL DIVERSION AGREEMENT, but await response from you, regarding the above subject.

You sent your PETITION, while I met with 8 The hearing judge noted “that there was no evidence presented that the MSBA Solo Practice CLE course was offered within the timeframe proscribed by the CDA.” 10 [the Monitor] and sought clarification from you, on this matter. I received no response. I forwarded to you, a revised copy of a Retainer Agreement. You failed to acknowledge receipt of this email.

On the same date, I met with [the Monitor] and sought clarification from him, as to the specific terms that were of issue. I sent Bar Counsel a copy of a new agreement, but you did not respond, in good faith. Bar Counsel refuses to act in good faith and, instead, filed a Petition to Revoke, as if my actions were not done, in good faith and that I had not substantially performed. To date, I have, refunded all monies to the client and requested clarification from you, concerning the MSBA course.

I have attempted to perform, pursuant to the agreement and remind you, that there is still a duty of good faith and fair dealing, with respect to any agreement. I have substantially performed, pursuant to the terms of the Agreement and still wish to comply. Please advise, whether or not, the course meets your approval. Thank you for your response.

On October 2, 2020, Bar Counsel replied and stated, in part: On September 24, 2020, you provided Bar Counsel with a revised retainer agreement. Your revised retainer agreement still contains improper engagement fee language, improperly states that your flat fee is “fully earned upon receipt,” and improperly states that “[i]f the Charges are dismissed or if the prosecution is terminated, the fee is fully earned when paid.” This language violates Maryland Rules 19-301.5, 19-301.15, and l9-301.16(d). See also Att’y Griev. Comm’n v. Kreamer, 404 Md. 282 , 946 A.2d 500 (2008); Att’y Griev.

Comm’n v. Stinson, 428 Md. 147 , 50 A.3d 1222 (2012). For the reasons set forth above and in the Petition, it is Bar Counsel’s position that you remain in material default of the Conditional Diversion Agreement. Pursuant to Maryland Rule 19-716(h), you may file a written response to the Petition with the Attorney Grievance Commission, within 15 days after service of the Petition. On October 10, 2020, Mr. Jones requested that Bar Counsel withdraw the Petition to Revoke.

Mr. Jones set forth a variety of reasons for his inability to timely comply with the terms of the CDA. He also argued that the nonrefundable language in his retainer 11 agreement did not violate the Rules of Professional Conduct. Additionally, Mr. Jones noted that Bar Counsel had previously dismissed an unrelated complaint against him that contained the same retainer agreement language. On October 22, 2020, the Commission revoked the CDA, lifted the stay of the disciplinary proceeding, and directed Bar Counsel to proceed in accordance with Maryland Rule 19-721.

Representation of Jada Chambers Jada Chambers (“Jada”9) was charged in the District Court in Baltimore County with stalking, harassment, making repeated telephone calls, and electronic harassment. These charges stemmed from Jada’s alleged violations of the terms of a restraining order involving a California resident named Melissa Conway. Ms. Conway is a radio personality with a nationwide talk show. Ms. Conway sought a restraining order against Jada for online harassment.

The Superior Court of California, County of Los Angeles, issued the restraining order against Jada on April 22, 2019. The allegations were that Jada made false accusations of child abuse against Ms. Conway and her partner, that she revealed Ms. Conway’s address publicly, revealed the names of her children, and invited the public to go to Ms. Conway’s home to have intercourse with her. After the restraining order’s issuance, Jada allegedly violated the order by engaging in additional online harassment. The Los Angeles Police Department notified the Baltimore County Police Department of the restraining order and Ms. Conway’s allegations.

On 9 Because Jada Chambers and her mother share the same last name, we will refer to them in this opinion by their first names to avoid confusion. We mean no disrespect. 12 October 25, 2019, Jada was arrested and charged in the District Court with four misdemeanor offenses, as stated above. State v. Chambers, Case No. D-08-CR-19-013826. As a condition of pretrial release, Jada was ordered to attend counseling.

Her trial date was scheduled for December 19, 2019. Jada and her mother, Paula Chambers (“Paula”), hired Mr. Jones to represent Jada in connection with the harassment case on November 5, 2019. Paula became involved in retaining an attorney to represent Jada because Paula was going to pay for the attorney’s services. Prior to the first meeting among Mr. Jones, Paula, and Jada, Paula understood that, if Mr. Jones was retained, Paula would be obligated to pay a flat fee of $4,000 for the representation, but that she would be permitted to pay this fee in installments.

The Legal Representation Agreement that Paula signed provided: l. Engagement Fee. Before I begin work or enter my appearance in the case, you must pay a non-refundable engagement fee in the amount of $1,500.00. The engagement fee is to compensate me for my acceptance of this engagement to the exclusion of the other employment.

The engagement fee is earned when received and is non-refundable. 2. Flat Fee. The Flat Fee of $4,000.00 constitutes the fee for representation of client, for the duration of the case, regardless of the nature and extent of services contemplated or rendered, or amount of time actually expended by Attorney. This Flat Fee, which is fully earned upon receipt, will be placed in Attorney’s Operating Account and not his Escrow Account, [t]hus becoming property of the Attorney.

If the Charges are dismissed or if the prosecution [is] terminated, the fee is fully earned when paid. If attorney’s services are terminated by the Client, at any time prior to the completion of the case, the Client will be [c]harged $250.00 for each hour of work performed on the case, with any balance to be refunded to the client. Paula signed the agreement and paid $2,000 toward Mr. Jones’s fee on November 5, 2019, when she and Jada met with Mr. Jones for the first time. 13 Jada received diagnoses10 on November 12, 2019 and November 14, 2019, from a licensed certified clinical social worker and a psychiatrist, respectively. Mr. Jones entered his appearance in Jada’s case on November 21, 2019.

He also filed a Motion for Discovery and Inspection. That motion incorrectly requested information pursuant to Maryland Rule 4-263, which applies to discovery in the Circuit Court, not the District Court. On November 26, 2019, Paula paid an additional $2,000 toward Mr. Jones’s fee. On December 9, 2019, the State filed a criminal information in the Circuit Court for Baltimore County.

State v. Chambers, Case No. C-03-CR-19-004707. This included the four original charges that had been filed in the District Court and 11 additional criminal charges related to Jada’s alleged failure to comply with the April 2019 restraining order. Jada checked the status of her case on December 11, 2019 through the Maryland Courts’ website and learned that her case had been transferred to the Circuit Court. Jada then contacted Mr. Jones, advised him of the Circuit Court case, and asked why the case had been transferred to the Circuit Court.

Jada followed up with a text message to Mr. Jones on December 13, 2019. Mr. Jones responded on December 17, 2019, stating: Case has been refiled as Criminal Information in the Circuit Court of Maryland for Baltimore County. The District Court case scheduled for 12/19/19, has been canceled and the case forwarded to the Circuit Court. We 10 As we determine that Mr. Jones’s conduct violated the MARPC regardless of whether he reasonably believed that Jada had diminished capacity, see pages 29-31 below, we do not address the reasonableness of Mr. Jones’s belief that Jada had diminished capacity.

Accordingly, we endeavor to preserve Jada’s privacy to the extent practicable. 14 filed an Entry of Appearance and requested Discovery. Since the case has been sent to the Circuit Court, you will need to await summons and new date. There are many reasons a case could end up in Circuit Court. The State has elected to drop the charges in the District Court and refiled as a Criminal Information.

Basically, the State has decided to refile in the Circuit Court. Nothing else happened except divestment of jurisdiction from District Court to Circuit Court. On December 21, 2019, Jada and Paula met with Mr. Jones, at which time he informed them that he required an additional fee of $2,000 to represent Jada in the Circuit Court. Mr. Jones said that the Circuit Court case was more complicated, noting the new charges that had been added when the case was refiled in the Circuit Court.

Mr. Jones presented Jada and Paula with a second Legal Representation Agreement, which stated: 1. Engagement Fee. Before I begin work or enter my appearance in the case, you must pay a non-refundable engagement fee in the amount of $750.00. The engagement fee is to compensate me for my acceptance of this engagement to the exclusion of the other employment.

The engagement fee is earned when received and is non-refundable. 2. Flat Fee. The Flat Fee of $2,000.00 constitutes the fee for representation of client, for the duration of the case, regardless of the nature and extent of services contemplated or rendered, or amount of time actually expended by Attorney. This Flat Fee, which is fully earned upon receipt, will be placed in Attorney’s Operating Account and not his Escrow Account, [t]hus becoming property of the Attorney.

If the Charges are dismissed or if the prosecution is terminated, the fee is fully earned when paid. If attorney’s services are terminated by the Client, at any time prior to the completion of the case, the Client will be [c]harged $250.00 for each hour of work performed on the case, with any balance to be refunded to the client. Jada testified that Mr. Jones did not explain the engagement fee and failed to explain that Paula’s funds would not be deposited into an attorney trust account. Paula signed the 15 second agreement and paid the additional $2,000 flat fee in two installments: $500 on December 28, 2019 and $1,500 on January 4, 2020.

Jada received a summons to appear for a January 13, 2020 hearing in the Circuit Court for Baltimore County. On January 7, 2020, Mr. Jones entered his appearance in the Circuit Court and filed a plea of Not Guilty and Not Criminally Responsible (“NCR”). He also filed a Motion for Discovery and Inspection. This motion was deficient in that it was missing Mr. Jones’s email address and client protection fund identification number.

On January 8, 2020, the circuit court issued a deficiency notice to Mr. Jones with respect to the Motion for Discovery and Inspection. The notice stated that Mr. Jones had 14 days in which to remedy the deficiency. In the NCR pleading, Mr. Jones asserted: [Jada] [was] not criminally responsible because when the alleged crimes were committed [she], due to a mental disability or impairment, lacked substantial capacity to appreciate the criminality of her conduct and thus, was unable to conform, her conduct to the requirements of the law. Mr. Jones also asserted in the pleading that Jada was incompetent to stand trial.

Mr. Jones did not discuss the NCR plea with Jada before filing it with the court. After Mr. Jones entered his appearance in Jada’s case, the January 13 hearing was postponed. On January 8, 2020, Jada checked the status of her case through the Maryland Courts’ website and learned of the postponement of the January 13 hearing. Between January 8 and 11, Jada sent numerous text messages to Mr. Jones asking whether she needed to appear for the January 13 hearing.

Mr. Jones responded on January 11, 2020: “Apparently it has been cancelled. I will not know, until Monday. I will need to speak with 16 the Clerk of the Court.” Mr. Jones failed to provide any further information to Jada regarding the canceled hearing. On January 13, 2020, Jada texted Mr. Jones in the morning, informing him that she did not appear at the courthouse, and she again requested additional information regarding the reason for the postponement as well as about the status of the case.

On January 16, 2020, having received no response to her January 13 message, Jada sent another message to Mr. Jones. Mr. Jones replied later on January 16: Ms. Chambers, please stop sending me so request for information, where I have explained that the process will take time and I will be in contact when information is shared. At this point, allow me to continue to work. I have already shown that I entered and that discovery was sought.

I am also filing a plea of not criminally responsible, as I believe that you were not acting out of your own volition, where the State may argue that you may have contacted the complainant. I believe that your history of mental health, should be considered, in light of the nature of the charge and your current diagnosis. We are seeking to have an order for an evaluation, so that you may speak with a professional, who may help to prove that your actions, were impulsive, due to your disability, over which you have no control. (All sic in original).

Contrary to the implication in this text message that Mr. Jones was in the process of filing a plea of not criminally responsible, Mr. Jones had already filed the NCR plea. Jada responded in part to this text from Mr. Jones: “Do you think they might try to hospitalize me?? Because my issues aren’t that severe[.] I’m still receiving outpatient Counseling and going to see a Psychiatrist[.]” Jada testified that she “Googled” the definition of NCR, because she had never heard of it, and was unaware of its implications. Jada never reviewed the NCR pleadings Mr. Jones filed on her behalf.

However, on January 27, 2020, Jada indicated in a text 17 message to Mr. Jones that she was willing to go along with the NCR plea in order to resolve her case. On January 27, 2020, Mr. Jones’s Motion for Discovery and Inspection was stricken because Mr. Jones had failed to correct his deficient filing within the required 14-day window. Jada sent Mr. Jones text messages asking why the filing had been stricken. Mr. Jones did not respond.

In February 2020, Jada and Paula terminated Mr. Jones’s representation. Jada first requested “emergency mediation” with Mr. Jones, a file review, and “receipts” for their retainer agreements. On February 19, 2020, Paula wrote Mr. Jones expressing agreement with her daughter’s wish to terminate representation. She requested that Mr. Jones provide “the entire contents of our file” as well as “[c]opies of retainer papers” and receipts for checks she had previously provided to Mr. Jones.

Mr. Jones did not respond to this letter. On February 20, 2020, Jada wrote a letter to the Circuit Court for Baltimore County requesting that Mr. Jones’s appearance be stricken. She alleged that he neglected her case, made errors in filings, and failed to communicate with her over the previous month. On February 21, 2020, Jada informed Mr. Jones that she and her mother wished to terminate the attorney-client relationship with Mr. Jones and requested a refund of “any money left from her retainer.” Mr. Jones responded later on February 21 and agreed to terminate his representation.

He stated that “[t]he fee was earned upon receipt, becoming property of the attorney.” He also stated his hourly rate was $250 and that the flat fee had been “exhausted … by way of the countless hours of phone conferences, entry of appearance, drafting time and subsequent hours spent advising you, in preparation for your 18 case.” Mr. Jones offered a “partial refund” of $250. He stated he believed this was fair “considering the additional work on the case and the special nature of the case.” He continued: “Initially, this case was said to be a simple harassment case. I was not aware of the potential need for mental health services and the additional proceedings required to prove your case. The amount charged was reasonable and the services were being rendered.” In response, Jada wrote: As we stated in the certified letter I would like for you to hand over my case file and copy of the 2 retainer agreements that we signed.

Every client has a right to a copy of their retainer agreements that they signed and their case file. I wasn’t aware that my case would have medical expenses involved either because I was never consulted by you first prior to you filing the “Not Criminally Responsible Plea”, I knew nothing about that plea and from what I was told every Lawyer needs to consult with their client first and get their approval before they file any plea on their behalf with the court. Mr. Jones communicated frequently with Jada during the course of his representation of her, usually responding to messages within 24 hours. Mr. Jones and Jada exchanged more than 120 text messages, and they also communicated on weekends.

Mr. Jones moved to strike his appearance on February 26, 2020. After terminating Mr. Jones’s representation, Jada obtained representation from the Office of the Public Defender. She subsequently withdrew her NCR plea and eventually tendered an Alford plea.11 11 Derived from North Carolina v. Alford, 400 U.S. 25 (1970), an Alford plea occurs when a defendant, while maintaining innocence, agrees to a proffer of stipulated evidence or to an agreed statement of facts that provides a factual basis for a finding of guilt. See Smith v. State, 2023 WL 4071729 , at ¹ n.2 (Md. June 20, 2023); Franklin v. State, 470 Md. 154 , 168 n.1 (2020). 19 On February 18, 2020, Jada filed a complaint against Mr. Jones with Bar Counsel.

On July 17, 2021, Bar Counsel concluded its investigation in the Chambers matter. The Commission subsequently directed Bar Counsel to file disciplinary charges related to the Chambers matter. On September 9, 2021, Bar Counsel filed the Amended PDRA, which combined the allegations of misconduct relating to the Johnson and Chambers matters. B. Conclusions of Law We summarize here the hearing judge’s Conclusions of Law.

Relevance of the CDA Citing Attorney Grievance Commission v. Dominguez, 427 Md. 308 (2012), the hearing judge observed that “when a Respondent signs a Conditional Diversion Agreement, this means that Respondent is acknowledging that they engaged in professional misconduct.” Thus, the hearing judge concluded, once Mr. Jones signed his CDA, he acknowledged that he had violated Rules 1.1, 1.3, 1.4, 1.5, 1.7, 1.15, 1.16, and 8.4 in connection with his representation of Mr. Johnson. Rule 1.1 (Competence) The hearing judge found that Mr. Jones violated Rule 1.1 in the Johnson matter, based on his admission in the CDA. In addition, the hearing judge concluded that Mr. Jones violated Rule 1.1 in the Chambers matter when he filed the NCR plea without Jada’s consent. The hearing judge reasoned: “[Mr. Jones] failed to explain how the NCR plea operated and any possible repercussions the plea could have.

Had [Mr. Jones] properly explained the NCR plea to [Jada], [Jada] could have elected another strategy to proceed with the case.” 20 The hearing judge concluded that Mr. Jones also violated Rule 1.1 in both the Johnson and Chambers matters when he failed to deposit and maintain unearned fees in his attorney trust account. Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Attorney) The hearing judge concluded that Mr. Jones violated Rule 1.2 when he failed to discuss the NCR plea with Jada. The hearing judge reasoned that an “attorney needs the client’s permission before entering … a plea[.]” Based on the hearing judge’s finding that Mr. Jones “never had communication with [Jada] about entering into a[n] NCR plea,” the hearing judge concluded that Mr. Jones violated Rule 1.2. Rule 1.3 (Diligence) The hearing judge concluded that Mr. Jones violated Rule 1.3 in the Johnson matter, based on his admissions in the CDA.

In addition, the hearing judge concluded that Mr. Jones violated Rule 1.3 by failing to investigate the status of Mr. Johnson’s pending matters, which “resulted in an inaccurate understanding of the District and Circuit Court matters, and led to confusion on Mr. Johnson’s part. As a result, Mr. Johnson appeared in court without representation.” The hearing judge also based her conclusion regarding Rule 1.3 on Mr. Jones’s erroneous advice to Mr. Johnson that the charges had been dismissed, “which led to a bench warrant being issued for Mr. Johnson.” With respect to the Chambers matter, the hearing judge determined that Mr. Jones violated Rule 1.3 by filing documents without his client protection number. The hearing 21 judge stated that “this resulted in multiple filings being returned, causing delay and harm to [Jada].” Rule 1.4 (Communication) The hearing judge concluded that Mr. Jones violated Rule 1.4 in the Johnson matter, based on his admissions in the CDA. With respect to the Chambers matter, the hearing judge observed that Mr. Jones communicated regularly with Jada, albeit not as frequently or as promptly as Jada wished.

Nevertheless, the hearing judge concluded that Mr. Jones violated Rule 1.4 by failing to discuss the NCR plea with Jada before entering that plea on her behalf. Rule 1.5 (Fees) The hearing judge concluded that Mr. Jones violated Rule 1.5 in the Johnson matter, based on his admissions in the CDA. The hearing judge further determined that Mr. Jones violated Rule 1.5 in the Johnson matter by charging an unreasonable fee of $4,000. The hearing judge stated that the $4,000 fee initially may not have been unreasonable.

However, the hearing judge concluded that the fee ultimately was unreasonable, as Mr. Jones did not complete fair services for the fee, leading to the requirement in the CDA that he refund $1,000 to Mr. Johnson. The hearing judge concluded that Mr. Jones also violated Rule 1.5 in the Chambers matter. The hearing judge reasoned that the fees Mr. Jones charged Jada were unreasonable, “due to the fact that [Mr. Jones] filed a[n] NCR plea” without Jada’s knowledge or consent. According to the hearing judge, Jada therefore “was not gaining any value from the services that [Mr. Jones] was paid for.” 22 The hearing judge concluded that Mr. Jones also violated Rule 1.5 in the Johnson and Chambers matters, by including language in his retainer agreements obligating the clients to pay a non-refundable “engagement fee.” The hearing judge explained that there was no evidence to suggest that Mr. Jones had to decline other work based on his agreement to represent these two clients.

The hearing judge concluded that Mr. Jones also violated Rule 1.5 by charging both clients flat fees that were purportedly “fully earned upon receipt.” Rule 1.15 (Safekeeping Property) The hearing judge concluded that Mr. Jones violated Rule 1.15 in the Johnson matter, based on his admissions in the CDA. In addition, the hearing judge determined that Mr. Jones violated Rule 1.15 in both the Johnson and Chambers matters by failing to obtain his clients’ informed consent, confirmed in writing, to deposit the flat fees into Mr. Jones’s operating account. The hearing judge noted that Mr. Jones’s retainer agreement stated: By my signature below, knowing that I have the option to request that fees paid for legal representation be placed in Attorney’s Escrow Account, rather than Attorney’s Operating Account, and drawn from at an hourly rate of $250.00 per hour, I agree instead to the Flat Fee arrangement as described above for services rendered. Funds in the operating account, however, can be attached by creditors, spent by the Attorney or may otherwise be unavailable for immediate refund.

The hearing judge concluded that, “[a]lthough this section of the retainer agreement states where the fees will be placed, and was signed by the clients, there is no evidence that [Mr. Jones] explained the distinction between the operating account and the attorney trust account.” The hearing judge implicitly credited the testimony of Jada and Paula, noting that they testified that “[Mr. Jones] never discussed this with them, and neither of them 23 knew the difference between the two.” Moreover, the hearing judge observed, there was “no evidence that [Mr. Jones] explained the possible risks and alternatives to the arrangement stated in the retainer agreement.” Rule 1.16 (Declining or Terminating Representation) The hearing judge determined that Mr. Jones violated Rule 1.16 in the Johnson matter, based on his admissions in the CDA. However, the hearing judge noted that Mr. Jones “did eventually pay Mr. Johnson a refund of $1,000.00. While he may have been a little late with his payments to Mr. Johnson, [the hearing judge] found that was due to financial issues caused by COVID-19.” With respect to the Chambers matter, the hearing judge concluded that Mr. Jones violated Rule 1.16 when he failed to provide the case file to Jada upon her request after she terminated Mr. Jones’s representation. Rule 8.4 (Misconduct) The hearing judge concluded that Mr. Jones violated Rule 8.4(a) and (d) in the Johnson matter, based on Mr. Jones’s admissions in the CDA.

The hearing judge also concluded that Mr. Jones violated Rule 8.4(a) and (d) in both the Johnson and Chambers matters, based on Mr. Jones’s violations of other rules of professional conduct in connection with those matters. 24 Aggravating Factors The hearing judge found the presence of three aggravating factors by clear and convincing evidence. First, the hearing judge found that Mr. Jones engaged in a pattern of misconduct by his failure to communicate in the Johnson and Chambers matters. Second, the hearing judge found that Mr. Jones committed multiple offenses, as he violated several rules of professional conduct in both the Johnson and Chambers matters. Third, the hearing judge found that Mr. Jones had substantial experience in the practice of law, given that he was admitted to the Maryland Bar in 2010.

The hearing judge found that Bar Counsel failed to establish any other aggravating factors by clear and convincing evidence. With respect to Bar Counsel’s contention that Mr. Jones exhibited a selfish or dishonest motive by refusing to refund fees in both matters, the hearing judge observed that Mr. Jones “did eventually pay Mr. Johnson back $1000.00, and offered to pay [Jada] a refund of $250.00.” More broadly, the hearing judge found that Bar Counsel “failed to prove that any of the actions by [Mr. Jones], were completed with a dishonest or selfish motive.” The hearing judge also rejected Bar Counsel’s contention that Mr. Jones failed to acknowledge the wrongful nature of his conduct. The hearing judge noted that Mr. Jones had admitted to violating several rules of professional conduct in the Johnson matter in the CDA, and that he refunded the required amount to Mr. Johnson. The hearing judge further noted that Mr. Jones took CLE classes and cooperated with his Monitor.

According to the hearing judge, Bar Counsel “did nothing to show that [Mr. Jones] did not acknowledge the wrongful nature of his conduct.” 25 Mitigating Factors The hearing judge found that Mr. Jones proved the existence of several mitigating factors by a preponderance of the evidence. First, the hearing judge found that Mr. Jones has received no prior disciplinary sanctions. Second, the hearing judge found that Mr. Jones suffered personal or emotional problems. Specifically, the hearing judge found that Mr. Jones suffered hardships due to the COVID-19 pandemic, as his practice decreased significantly in volume, and he lost a family member to the disease.

The hearing judge also found, among other things, that Mr. Jones “came close to losing his office space” and was “unable to pay the required refund and … CLE classes in a timely manner.” Third, the hearing judge found that Mr. Jones made timely good faith efforts to make restitution or to rectify the consequences of his misconduct. In this regard, the hearing judge found significant that Mr. Jones fully paid Mr. Johnson the $1,000 refund required under the CDA (although the first $500 payment was late). In addition, the hearing judge noted that Mr. Jones followed the advice of his Monitor when attempting to fulfill the CLE obligations under the CDA. Fourth, the hearing judge found that Mr. Jones demonstrated a cooperative attitude toward the disciplinary proceedings.

Fifth, the hearing judge found that Mr. Jones demonstrated his good character and reputation through character testimony provided by his son, Devonte Jones: “Devonte Jones … testified as to his experiences while working at [Mr. Jones’s] firm for 12 years as a legal assistant and paralegal. Devonte testified that [Mr. Jones] is not a thief, nor has he 26 ever embezzled money, and always treats people well. [Mr. Jones] was a positive influence on Devonte’s life, and inspired him to pursue a legal career.” II Standard of Review “This Court has original and complete jurisdiction in an attorney disciplinary proceeding and conducts an independent review of the record. The hearing judge’s findings of fact are left undisturbed unless those findings are clearly erroneous. We review the hearing judge’s conclusions of law without deference.” Attorney Grievance Comm’n v. Hoerauf, 469 Md. 179, 207-08 (2020) (cleaned up).

Neither Mr. Jones nor Bar Counsel filed exceptions to the hearing judge’s findings of fact and conclusions of law. Although, in the absence of exceptions, we may treat the findings of fact as established, Md. Rule 19-740(b)(2)(A), we have conducted an independent review of the record. III Violations of the MARPC12 Rule 1.1: Competence Rule 1.1 states: “An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 12 In several instances, the hearing judge concluded that Mr. Jones violated the MARPC with respect to the Johnson matter, based on Mr. Jones’s admissions in the CDA.

However, the hearing judge did not find that Mr. Jones breached the CDA. Moreover, the hearing judge noted Mr. Jones’s efforts to comply with the CDA during the period of time 27 By failing to investigate Mr. Johnson’s pending cases, Mr. Jones demonstrated a lack of “legal knowledge, skill, thoroughness and preparation” that violated Rule 1.1. Mr. Jones’s error resulted in him misinforming Mr. Johnson of his case status, thereby causing Mr. Johnson to fail to appear for his District Court trial. As a result, the District Court issued a bench warrant for Mr. Johnson’s arrest and his traffic case was delayed.

In addition, Mr. Jones’s failure to investigate and understand the interplay between Mr. that included the beginning of the COVID-19 pandemic. With respect to the refund to Mr. Johnson, the hearing judge stated: “While he may have been a little late with his payments to Mr. Johnson, this Court found that was due to financial issues caused by COVID-19.” In addition, the hearing judge found that Mr. Jones followed the advice of the Monitor in attempting to belatedly complete the CLE courses. Further, the hearing judge found that there was no evidence that the solo practice CLE course was offered during the period of time in which Mr. Jones was supposed to complete it per the CDA. We conclude that Mr. Jones technically breached the CDA by: (1) making the first required refund payment to Mr. Johnson eight days late (May 30, 2020, versus May 22, 2020); and (2) failing to take the required CLE classes on the schedule to which he agreed in the CDA.

We note that, although Bar Counsel’s initial notice to Mr. Jones of its intent to declare Mr. Jones in default under the CDA did not refer to the lateness of the first refund payment, the subsequent petition to revoke set forth the facts relating to that payment, and Mr. Jones has never disputed Bar Counsel’s contention that the first payment to Mr. Johnson was late. In addition, although Bar Counsel did not rely on Mr. Jones’s acts of misconduct in the Chambers matter as a ground upon which to revoke the CDA, our findings in this opinion concerning the Chambers matter make clear that Mr. Jones did, in fact, violate the MARPC during the diversionary period. For all of these reasons, the Commission acted within its authority in revoking the CDA and the stay of the disciplinary or remedial proceeding, and in directing Bar Counsel to file the PDRA under Maryland Rule 19-721. However, we cannot ignore that the COVID-19 pandemic began while Mr. Jones still had more than two months to comply with the conditions of the CDA.

Although we could follow the hearing judge’s lead and rely on Mr. Jones’s admissions in the CDA to conclude that he violated various provisions of the MARPC in connection with the Johnson matter, in these circumstances we choose to conduct an independent review of the record. 28 Johnson’s traffic case and criminal case led to a misunderstanding between Mr. Johnson and Mr. Jones concerning the scope of Mr. Jones’s representation. Mr. Jones also violated Rule 1.1 in the Chambers matter by failing to discuss the NCR plea with Jada before entering it on her behalf. We recognize that, in many instances in which attorneys file NCR pleas on behalf of their clients, the attorneys reasonably believe that they are representing clients who have diminished capacity. Rule 1.14 provides for these situations.

Rule 1.14 states, in part, that: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished whether because of minority, mental impairment or for some other reason, the attorney shall, as far as reasonably possible, maintain a normal client-attorney relationship with the client. (b) When the attorney reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the attorney may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian. In this case, Mr. Jones may have believed that Jada had diminished capacity. At oral argument before this Court, he stated: “My background is from social work before becoming an attorney, and then I became a defense attorney.

In this situation, I met with clients who I assumed based on meeting with both mother and client, that this person was someone who couldn’t appreciate the wrongfulness of their behavior and the criminality.” However, we need not address whether Mr. Jones’s belief was reasonable, as Mr. Jones’s failure to consult with Jada before filing an NCR plea violated Rule 1.1, even if Mr. Jones believed that Jada had diminished capacity. 29 It is incumbent upon an attorney “as far as reasonably possible” to “maintain a normal client-attorney relationship with the client.” Rule 1.14(a). In this case, the hearing judge’s findings demonstrate that it was reasonably possible for Mr. Jones to communicate a recommendation for an NCR plea to Jada. Jada understood