Attorney Grievance Commission of Maryland v. Harris

HARRELL, Judge. Pursuant to Maryland Rule 16-709(a), 1 Bar Counsel, on behalf of the Attorney Grievance Commission, Petitioner, and at the direction of the Review Board, filed a petition with this Court initiating disciplinary proceedings against Alan Edgar Harris, Respondent, a member of the Maryland bar. In this ³⁸² petition, Bar Counsel asserted two complaints alleging violations of the Maryland Rules of Professional Conduct (MRPC) 1.1 (competence); 1.3 (diligence in representation); 1.4 (communication with clients); 1.16(a)(2) (declining or terminating representation); 3.2 (expediting litigation); 8.1(b) (disciplinary matters); and 8.4(d) (misconduct) in connection with Respondent’s representation of Michael Sims, Lorraine Sims, Earn Branch and Terlonda Sims 2 (collectively referred to as “Sims”), and Shantrice Braswell 3 in unrelated cases. This Court referred the matter to Judge Marcella A. Holland of the Circuit Court for Baltimore City to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Md. Rules 16-709(b) 4 and 16-711(a). 5 Following an evidentiary hearing, at which Respondent and his counsel were present and fully participating, Judge Holland found, by clear and convincing evidence, that Respondent violated MRPC 1.3, 1.4(a), 1.16(a)(2), and 3.2 relating to his representation in both the Sims and Braswell matters and Rule 1.4(b) in the Sims matter.

Judge Holland further concluded that Respondent did not violate MRPC 1.1, 8.1(b) and 8.4(d) in both the Sims and Braswell matters, nor Rule 1.4(b) in the Braswell matter. ³⁸³ From the evidentiary record below, Judge Holland made the following findings of fact pertaining to Respondent’s conduct regarding his representation of Sims and Ms. Braswell. I. A. General Background 1. Respondent is an attorney licensed to practice law in the State of Maryland since 1960. Respondent has represented between fifteen and twenty thousand clients in automobile negligence cases.

While serving in the military, Respondent investigated automobile cases for two years. He worked as a claims adjuster for USF & G between 1956 and 1959. 2. Respondent was previously sanctioned for violation of the Maryland Rules of Professional Conduct.[ 6 ] 3. Respondent was notified of the present action on 4 September 1998.

The response to the action was filed on 24 February 1999. B. Facts Relevant to Sims 1 On 22 December 1990, Sims was in an automobile accident. As a result of the accident they retained the Respondent to represent them. They received medical treatment for soft tissue injuries arising from the acci ³⁸⁴ dent through January 1991, collectively incurring $5,293.00 in medical bills. 2.

Respondent contacted the defendant’s insurance carrier, CNA, in an effort to settle the case between the date of the accident and July 1992. Respondent did not make a demand for payment during these discussions and CNA denied payment. No written notification of denial was presented to Respondent by CNA. On 13 July 1992, Respondent submitted Sims’ medical bills to CNA.

Personal Injury Protection (PIP) was paid to Sims by Liberty Mutual Insurance Company on 21 February 1991. 3. On 22 July 1993, Michael Sims was convicted in the Circuit Court for Baltimore County of possession of cocaine with intent to distribute. He was sentenced to a term of imprisonment for five (5) years with all but one (1) year suspended, and four (4) years probation upon release. 4. According to Respondent, he was reluctant to proceed with the negligence suit, in the event it could not be settled out of court, based on Michael Sims’s recent criminal record.

None of the other co-plaintiffs had a criminal record. Respondent’s eventual decision not to pursue the civil case in trial was based on Michael Sims’s criminal record. 5. Through the course of the civil case, Respondent spoke primarily with Michael Sims. According to Respondent, Michael Sims was the spokesperson for the group of co-plaintiffs and had permission to speak on their behalf. 6.

On 21 December 1993, Respondent filed a complaint in the Circuit Court for Baltimore City on behalf of the Sims plaintiffs. Respondent failed to serve the defendant in the case with a Complaint and Summons. CNA never received notice of the Complaint filed in Court and therefore closed its file regarding the case. 7. On 23 September 1997, the Circuit Court for Baltimore City sent out a Notification to Parties of Contemplated ³⁸⁵ Dismissal pursuant to Maryland Rule 2-507.[ 7 ] In response, Respondent filed a Motion to Suspend Maryland Rule 2-507 on 27 October 1997.

The defendant in the matter, Raymond Wolf, Sr., filed Defendant’s Opposition to Plaintiffs’ Motion to Defer Dismissal Pursuant to Rule 2-507 on 12 December 1997. A hearing was scheduled on 15 December 1997. Plaintiff did not appear for the hearing in person or through Respondent. Respondent’s motion was denied and the case was dismissed without prejudice on 15 December 1997.

C. Facts Relevant to Ms. Braswell 1. On 11 January 1995, Shantrice Braswell, a pedestrian, was struck by a car driven by Myrtle Weissberg in a hit and run accident. Ms. Braswell was a minor at the time of the accident.[ 8 ] 2. Respondent was retained by Tammy Braswell, Shan-trice’s mother, on her behalf.

Respondent had previously represented Mrs. Braswell in another matter. 3. On 12 January 1995, Respondent obtained the name and address of the defendant from the Motor Vehicle Administration based on. a license plate number provided by an unidentified witness to the accident. 4. In January 1995, the defendant’s insurance company, CNA, contacted Respondent and acknowledged representation of the defendant. Respondent did not make a •demand to the insurance company, but the insurance company offered $1,000.00 to Ms. Braswell. ³⁸⁶ 5.

Ms. Braswell received medical treatment from 13 January 1995 until February 1995 for soft tissue injuries received in the accident. Respondent received copies of those medical records on 13 August 1996. Respondent made a claim for PIP more than one year after the accident occurred due to the fact that he did not have the plaintiffs medical records. There are no records of written or oral communication by the Respondent requesting the necessary medical records. 6.

On 3 November 1997, a complaint was filed in the District Court of Maryland sitting in Baltimore City. The defendant filed a notice of intention to defend on 22 December 1997 through her attorney, Mary G. Weidner, Esquire, and mailed interrogatories to' Respondent. A trial date was set for 2 February 1998. 7. Defense counsel contacted Respondent on 26 January 1998 regarding not having received the answers to interrogatories.

Respondent, the following day, filed a motion requesting a postponement of the trial date, which was granted. The trial date was rescheduled for 8 June 1998. 8. On 9 February 1998, defense counsel, again, contacted Respondent regarding the missing answers to interrogatories. At this time, Respondent explained that he had been unable to meet with his client to answer the interrogatories. 9.

Defense counsel filed a Motion for Sanctions against Respondent for failure to provide discovery on 12 February 1998. Respondent did not file a response to that motion. At the hearing on this matter, Respondent testified that Mrs. Braswell missed an appointment to answer the interrogatories. Respondent cited the missed appointment as the reason the interrogatories were not answered.

Respondent did not reschedule the appointment, nor did he mail the interrogatories to Mrs. Braswell to answer, claiming it was his practice to meet with the client to go over the interrogatories. ³⁸⁷ 10. On 8 June 1998, Respondent failed to appear for the trial and the case was dismissed with prejudice. 11. Respondent filed a motion to strike the judgment on 8 July 1998, which was denied. Respondent filed an appeal in the Circuit Court for Baltimore City on 21 August 1998.

A hearing was held on 31 March 1999. On 12 April 1999, an Order was signed vacating the dismissal with prejudice and further remanded the case to the District Court so that an order dismissing the case without prejudice could be entered. 12. Respondent sent a letter to Mrs. Braswell on 20 September 2000, explaining that the case was dismissed without prejudice and the statute of limitations would ran on 7 July 2001, Ms. Braswell’s twenty-first (21) birthday. The letter further explained that Ms. Bras-well could refile the claim, but would need to hire a new attorney if she "wished to pursue the matter further.

C. Facts Concerning Respondent’s Personal Circumstances 1. Respondent suffered numerous personal tragedies between mid-May and mid-June 1998. Among those tragedies were the deaths of his mother on 31 May 1998 and mother-in-law on 9 June 1998. While attending to these tragedies, Respondent was frequently out of the office and therefore unaware of his trial schedule.

According to Respondent, his failure to appear for trial on 8 June 1998 was due to his attention to these personal matters. Respondent filed three exceptions to Judge Holland’s findings of fact and conclusions of law. Respondent’s first two exceptions related to Judge Holland’s failure to make any findings of fact or conclusions of law concerning several defenses, raised in Respondent’s Answer to Petition for Disciplinary Action, pertaining to the pre-petition proceedings. Respondent also excepted to Judge Holland’s conclusion that he violated MRPG 1.3, 1.4(a), 1.16(a)(2), and 3.2 in both the ³⁸⁸ Sims and Braswell matters and Rule 1.4(b) in the Sims matter.

We find these exceptions to be without merit and overrule them. On the other hand, Petitioner excepts to Judge Holland’s conclusion that Respondent did not violate MRPC 1.1 and 8.4(d). We sustain Petitioner’s exceptions. 9 We address Respondent’s exceptions below.

II

A. Standard of Review It is well settled that this Court has original jurisdiction over all attorney disciplinary proceedings. See Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 20 , 762 A.2d 950, 960 (2000); Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 17 , 741 A.2d 1143, 1152 (1999); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); see also Md. Rule 16-709(b) (stating “[c]harges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in the Court of Appeals.”). As to Respondent’s exceptions to Judge Holland’s findings, “ ‘we [make] an independent, detailed review of the complete record with particular reference to the evidence relat[ed] to the disputed factual finding.’ ” Sheridan, 357 Md. at 17 , 741 A.2d at 1152 (quoting Glenn, 341 Md. at 470 , 671 A.2d at 473 -74 (quoting Bar Ass’n v. Marshall, 269 Md. 510, 516 , 307 A.2d 677, 680-81 (1973))). In our review, “we must keep in mind that the findings of the [hearing] judge are prima facie correct and will not be disturbed unless clearly erroneous.” Glenn, 341 Md. at 470 , 671 A.2d at 474 .

See Attorney Grievance Comm’n v. Kemp, 303 Md. 664, 674 , 496 A.2d 672, 677 (1985); Attorney Grievance Comm’n v. Collins, 295 Md. 532, 548 , 457 A.2d 1134, 1142 (1983); Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 678 , 431 A.2d 1336, 1349 (1981). We note that the hearing ³⁸⁹ judge “ ‘may elect to pick and choose which evidence to rely upon,’ ” Kemp, 303 Md. at 675 , 496 A.2d at 677 (quoting Attorney Grievance Comm’n v. Nothstein, 300 Md. 667, 684 , 480 A.2d 807, 816 (1984)), for she or he “is in the best position to assess first hand a witness’s credibility.” Sheridan, 357 Md. at 17 , 741 A.2d at 1152 . Therefore, we will not tamper with Judge Holland’s factual findings if they are grounded in clear and convincing evidence. See Kahn, 290 Md. at 679 , 431 A.2d at 1349 .

We recently reiterated the definition of clear and convincing evidence in Attorney Grievance Comm’n v. Mooney, 359 Md. 56 , 753 A.2d 17 , (2000): The requirement of “clear and convincing” or “satisfactory” evidence does not call for “unanswerable” or “conclusive” evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence. 359 Md. at 79 , 753 A.2d at 29 (quoting Berkey v. Delia, 287 Md. 302, 320 , 413 A.2d 170, 178 (1980) (citing Whittington v. State, 8 Md.App. 676 , 679 n. 3, 262 A.2d 75 , 77 n. 3 (1970))).

B. Respondent’s Exception 1 Respondent asserts that Judge Holland erred in failing to make any findings of fact and conclusions of law with respect to issues set forth in his second, third, fourth, fifth and ³⁹⁰ seventh defenses in his Answer to Petition for Disciplinary Action, which we summarize below: Second Defense: Petitioner’s pleading for disciplinary action improperly alleged, in the same single count, multiple charges of misconduct arising from two separate and distinct causes of action, specifically, the Sims and Braswell matters. Third Defense: Respondent was denied due process[ 10 ] in Petitioner’s pre-petition proceedings, specifically: (a) Respondent was excluded from participation in the selection of the members of the Inquiry Panel; (b) the membership of the original Inquiry Panel was altered without Respondent’s knowledge or prior notification, in spite of there having been ample time to do so, thereby effectively depriving Respondent of his ability to object to a panel member for cause;[ 11 ] (c) Petitioner improperly combined for hearing two separate and distinct causes of action, Sims and Braswell, before the same Inquiry Panel, thereby depriving Respondent of a fair and impartial hearing; and (d) Petitioner improperly sub ³⁹¹ mitted Respondent’s prior disciplinary history to the Inquiry Panel before it had made a determination in the Sims and Braswell matters, and such submission deprived Respondent of a fair and impartial hearing. Fourth Defense: It was improper for Bar Counsel’s office to appear for Petitioner in this action, when the complainant in the grievance proceeding was Bar Counsel. Fifth Defense: Petitioner’s functioning as complainant, investigator, charging party, prosecutor, hearing agency and, in its administrative proceedings, as the deciding agency, deprived Respondent of due process of law and equal protection of the laws.

Seventh Defense: The hearing judge’s post-petition proceeding was tainted by Petitioner’s pre-petition proceedings and activities. Respondent was not prejudiced by Judge Holland considering multiple charges of misconduct arising from the Sims and Braswell matters in a single disciplinary proceeding. See Attorney Grievance Comm’n v. Stewart, 285 Md. 251, 259-60 , 401 A.2d 1026, 1030 (1979). We now turn to Respondent’s exception relating to Judge Holland’s failure to make any findings of fact and conclusions of law concerning the above enumerated defenses regarding the pre-petition proceedings.

We find that Respondent’s exception on this issue is without merit. While it is true that Judge Holland did not address this in her memorandum, she was not obligated to do so and her omission did not prejudice Respondent. It is well settled, a point conceded by Respondent at both the evidentiary hearing and in his exceptions, that “if a lawyer is given notice and the opportunity to defend in a full and fair hearing before a three-judge panel [then serving much the same function as a single judge does currently], the question whether he was accorded due process of law by the Inquiry Panel and the Review Board is ordinarily immaterial.” Stewart, 285 Md. at 259 , 401 A.2d at 1030 . See also Harris, 310 Md. at 202, 528 A.2d at 897; ³⁹² Bar Ass’n of Baltimore v. Posner, 275 Md. 250, 255, 339 A.2d 657, 659-60 (1975); Maryland State Bar Ass’n v. Frank, 272 Md. 528, 538, 325 A.2d 718, 723-24 (1974).

We have held that attorney disciplinary proceedings for professional misconduct are not criminal proceedings, and “[ajccordingly, a lawyer charged with misconduct is not entitled, at any stage of disciplinary proceedings, to all of the constitutional safeguards accorded an accused in a criminal proceeding.” Stewart, 285 Md. at 258-59 , 401 A.2d at 1029-30 . We have likened proceedings conducted by the Inquiry Panel and Review Board “to the proceedings conducted by a grand jury in criminal cases. Their purpose is to aid in determining whether to institute disciplinary action. They are investigatory in nature and informal to the extent that the rules of evidence need not apply.” Stewart, 285 Md. at 259 , 401 A.2d at 1030 .

See also Attorney Grievance Comm’n v. McBurney, 282 Md. 116, 121-23 , 383 A.2d 58, 61-62 (1978); Frank, 272 Md. at 538, 325 A.2d at 723-24 . Respondent urges this Court to reassess the reasoning of Stewart in the instant case in light of the fact that Petitioner violated its own procedural guidelines when it failed to give Respondent prior notification of substitutions made to the membership of the Inquiry Panel as originally constituted. We are not persuaded. Moreover, we addressed this issue in Harris, when we explained that if there is cause for objection to a Panel member based on conflict of interest grounds, an attorney may give written notice to the Panel Chairman in accord with procedural guidelines. 310 Md. at 202-03, 528 A.2d at 897-98.

There was nothing to preclude Respondent from submitting written notification to the Panel Chairman within the required ten (10) days of his Panel hearing, when he first became aware of the identity of the ultimate Panel members and their alleged potential conflicts. While the record indicates Respondent’s counsel made a verbal objection at the Inquiry Panel hearing, there is nothing to indicate he put his objection in -writing as required by the Guidelines. Moreover, this Court is not convinced that there was an actual or apparent conflict of interest between Respondent and any ³⁹³ Panel member, or any prejudice as a result of the substitutions. Respondent was afforded notice and an opportunity to defend in a full and fair hearing before Judge Holland.

Accordingly, his various defenses asserting denial of due process in the pre-petition proceedings are without merit. C. Respondent’s Exception 2 For the reasons enumerated above, we overrule Respondent’s second exception that Judge Holland failed to afford appropriate effect to the evidence bearing upon the issues raised by his second, third, fourth, fifth and seventh defenses, particularly whether the effect of Petitioner’s activities and administrative proceedings deprived Respondent of due process of law. D. Respondent’s Exception 3 We now turn to Respondent’s third exception relating to Judge Holland’s findings of fact and conclusions of law that he violated MRPC 1.3, 1.4(a), 1.16(a)(2), and 3.2 in both the Sims and Braswell matters, and Rule 1.4(b) in the Sims matter. Respondent argues these findings and/or conclusions are not supported by clear and convincing evidence.

We have made an independent and thorough review of the record, and conclude that Judge Holland’s findings of fact and conclusions of law as they relate to these violations are supported by clear and convincing evidence. i. Violation of MRPC 1.3 Maryland Rule of Professional Conduct 1.3 — Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client. Judge Holland concluded that Respondent failed to diligently represent Sims based on her findings that Respondent did not file a complaint in the matter until nearly three years after the accident (even though he was hired almost immediately following the accident), Respondent failed to serve the defendant, which resulted in a motion for dismissal under Rule 2- ³⁹⁴ 507, and then failed to appear for the scheduled hearing on the motion.

In a blanket assertion meant to cover all of Judge Holland’s adverse findings or conclusions, Respondent desires that we excuse his failure to serve the defendant and appear at the Rule 2-507 hearing on the basis that he had no intention of taking the case to trial if it could not be settled. 12 Moreover, Respondent asserts that Michael Sims, a plaintiff in the matter and the alleged spokesperson for his co-plaintiffs, was informed and approved of Respondent’s decision. Judge Holland concluded that Respondent’s filing of a motion to suspend operation of the Rule 2-507 dismissal belied Respondent’s assertion. We agree. Our review of the record indicates Respondent was frustrated in his attempts to settle with the defendant’s insurance company in the three years following the accident, at which point he filed a complaint within one day of the expiration of the statute of limitations.

Nearly four (4) years later, and in response to the court’s notification of a contemplated dismissal for lack of prosecution, Respondent filed a motion to suspend operation of Rule 2-507, asserting that Sims had a “meritorious case” and “if the Court strikes the Order of Dismissal and re-instates the case and suspends the operation of Maryland Rule 2-507, the Plaintiff is ready and eager to proceed with the case and will make every effort to bring the case to a conclusion within such time as the Court orders.” (Emphasis added). Neither Respondent nor Sims appeared for the Rule 2-507 hearing. We stated in Mooney , “ ‘this Court has consistently regarded neglect and inattentiveness to a client’s interests to be [an ethical violation] warranting the imposition of some disciplinary sanction.’ ” 359 Md. at 76 , 753 A.2d at 27 (quoting Attorney Grievance Comm’n v. Montgomery, 296 Md. 113, 120 , 460 A.2d 597, 600 (1983)). Judge Holland’s conclusion that Respondent violated MRPC 1.3 by his failure to serve the defendant and appear at the Rule 2- ³⁹⁵ 507 hearing is supported by clear and convincing evidence.

This exception is overruled. In regard to the Braswell matter, Respondent acknowledges he failed to appear for trial, resulting in the case being dismissed with prejudice. Respondent offers as explanation for his neglect during that time, the recent death of his mother and frequent absences from his office while attending to the needs of his dying mother-in-law, during which time he was unaware of his trial schedule. He further suggests that any prejudice to his client caused by his failure to appear for trial was remedied as a result of the appeal to the Circuit Court, which modified the District Court’s judgment to dismissal without prejudice.

While we sympathize with Respondent’s personal tragedies and attendant duties during this time, Respondent’s inability to diligently represent Ms. Bras-well was a violation of MRPC 1.16(a)(2), discussed infra. Moreover, extenuating circumstances surrounding Respondent’s neglect, as well as the fact that his client ultimately was not prejudiced, are considerations for determining the proper sanction. See Attorney Grievance Comm’n v. Jaseb, 364 Md. 464, 481-82 , 773 A.2d 516, 526 (2001) (quoting Glenn, 341 Md. at 488-89 , 671 A.2d at 483 (suggesting a non-exclusive list of mitigating factors this Court will consider in determining the proper sanction) (citations omitted)). Respondent excepts to Judge Holland’s conclusion that he violated Rule 1.3 by failing to answer defendant’s interrogatories in the Braswell case.

Respondent argues his failure to do so was the result of Mrs. Braswell’s lack of cooperation in missing a scheduled appointment to review the interrogatories. Judge Holland rejected his assertion, noting Respondent’s testimony that he made no further effort to reschedule the appointment or to mail the interrogatories to Mrs. Braswell as a means to obtain answers. In our review of the record, we find Respondent’s exception to be without merit. Defendant’s interrogatories were mailed to Respondent on 22 December 1997.

Respondent failed to respond to the interrogatories prior to the 8 June 1998 court date, in spite ³⁹⁶ of repeated attempts by defendant’s counsel to secure discovery, including a hearing for sanctions on the matter. We agree with Judge Holland that Respondent’s failure to make reasonable attempts to respond to defendant’s interrogatories in furtherance of his client’s interests was in violation of Rule 1.3. Accordingly, we overrule this exception. ii. Violation of MRPC 1.4 Maryland Rule of Professional Conduct 1.4 — Communi cation.

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A