Attorney Grievance Commission of Maryland v. McGLADE

BARBERA, J. On February 24, 2010, Bar Counsel, on behalf of the Attorney Grievance Commission (Petitioner), filed a petition, later amended, “For Disciplinary or Remedial Action” against Respondent, attorney Henry D. McGlade, Jr. The petition alleged a number of violations of Maryland Lawyers’ Rules of Professional Conduct (MRPC) relating to Respondent’s representation of Jerome G. Brewis. The Honorable Pamela L. North conducted a three-day hearing and thereafter issued her written findings of fact and conclusions of law. Judge North found, by clear and convincing evidence, that Respondent violated MRPC 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 3.3 (Candor Toward the Tribunal), and 8.4(a), (c), and (d) (Misconduct). I. Judge North made the following findings of fact: Respondent has been licensed to practice law in Maryland since 1984, with a focus on real estate.

Jerome G. Brewis has been a client of Respondent since 1999. In January 2006, Brewis received a civil citation for building code violations (code violations) in connection with boathouses and piers located on his property at 8215 Parkway Drive, Pasadena, Maryland. Anne Arundel County (County) filed in the District Court of Maryland a complaint against Brewis for permanent and mandatory injunctive relief. Brewis asked Respondent to represent him in the matter.

Brewis also approached another attorney, Steven Freeman (Freeman), who had represented him in other matters since 2002, to assist. Brewis, Respondent, and Freeman held an initial meeting to discuss the District Court case. Respondent thought Brewis should litigate the case, and Freeman thought Brewis should ⁵²⁷ try to settle the matter. Freeman “dropped out of the case,” at that time without entering his appearance.

Trial was originally scheduled for November 2006. Respondent took measures to prepare for trial on that date but ultimately sought a continuance due to scheduling conflicts. Nancy M. Duden (Duden), the County Attorney prosecuting the case, consented to the continuance. A consent motion was filed and granted by the District Court, postponing the trial date until February 1, 2007.

Respondent tried without success to reach Brewis several days before and on the trial date of February 1, 2007. On that day, Respondent and Duden met at the courthouse, where the two negotiated a proposed consent order based on terms that Respondent represented to Duden had been discussed with Brewis. Also present in the room at the time of the negotiations was Don Wooden, a Code Enforcement Officer with the Anne Arundel County Department of Inspections and Permits. Twice during the negotiations, Respondent stepped outside the room, saying that he was leaving to speak with Brewis.

In fact, Respondent did not contact Brewis at either time. Duden, though, believed that Respondent was consulting with Brewis. Respondent entered the consent agreement on behalf of Brewis, which included that Brewis would pay $1625, which was the full amount of the fine for the code violations. Respondent and Duden went into court and informed the presiding judge, the Honorable Danielle Mosley, that the parties had reached a consent agreement.

Judge Mosley signed the consent order. Respondent paid the full amount of the fine, $1625, with a cashier’s check. The consent order required Brewis to apply for permits for all of the cited structures within 30 days. Respondent did not speak with Brewis during that 30-day period, and he did not file any permit applications or requests for variances during that period.

Respondent did not talk with Brewis about the con ⁵²⁸ sent order until late March 2007. 1 Between February and late March, Brewis attempted on multiple occasions and through various avenues to contact Respondent and eventually sought the assistance of Freeman in contacting Respondent. After multiple attempts, Freeman reached Respondent. At that time or sometime thereafter, Respondent explained to Freeman that he had entered into the consent agreement and order because he was unprepared to litigate the case on February 1, 2007, and he believed another postponement request would be denied. Respondent believed that entry of the consent order left open the possibility to challenge the code violations.

In late March 2007, Respondent met with Brewis to discuss the consent order. Respondent wanted to move away from Brewis’s previous position of preserving all of the structures. At that point, Brewis had Freeman assume a larger role in the matter. Brewis was angry that Respondent had entered the consent order.

At that same time, Respondent began drafting a building permit application, which was completed in July 2007. At some point after expiration of the 30-day period for compliance with the consent order, during which no action was taken to comply with its terms, Duden filed a contempt petition. A show cause order was served on Brewis in May 2007. Brewis testified without contradiction that he did not agree to the consent order or have any knowledge of it, and he neither provided funds to pay the civil fine nor received a request from Respondent for reimbursement for his payment of the fine.

Freeman agreed to represent Brewis in the ongoing District Court case. John Dowling, a land surveyor Respondent had used as an expert in previous matters, advised Brewis that he ⁵²⁹ was willing to testify on Brewis’s behalf in the District Court case. In early 2008, at the suggestion of Freeman, Brewis also retained Harry Blumenthal (Blumenthal) an experienced practitioner of land use administrative law. Respondent continued to be involved in the case, preparing materials for the variance application, non-conforming use application, and permit applications.

Freeman, Blumenthal and Respondent devised a strategy whereby Brewis could litigate the matter in an administrative proceeding, while simultaneously postponing the contempt proceeding. Litigation of the contempt proceeding was handled by Freeman. Blumenthal was to advise Freeman and handle the administrative part of the case. But once Blumenthal was hired in 2008, Respondent’s role was reduced to serving as an historical reference.

In the summer of 2008, Respondent’s role in the case ended. It was decided ultimately that the best course of action was to attempt to vacate the consent order. Freeman filed a Motion to Vacate the Consent Order in August 2008, which the County opposed. At the hearing on the motion, Respondent acknowledged that Brewis had not given him express authority to enter the consent order.

The court granted the motion to vacate the consent order, and Duden refunded Respondent $1625 for the fine. We quote below Judge North’s conclusions of law 2 : Rule 1.1 Competence: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment 1 to Rule 1.1 states: In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature ⁵³⁰ of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.

Comment 5 to Rule 1.1 states: Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. In this case, Respondent was admitted to the Bar of the District of Columbia in 1984 and to the Bar of the Court of Appeals of Maryland in 1985. He also was admitted to the Bar of the United States District Court for the District oif Maryland in 1992 and has continuously practiced law since his admission to the bar.

His practice initially consisted of litigation, but after a couple years, his work focused on real estate and has continued a focus on real estate and litigation. The case Respondent undertook for Brewis involved complex matters of real property including property lines, setbacks, variances, wetland licenses, county, state and federal regulations, and the legal status of numerous structures including piers, boathouses, cat walks, and boat slips. Respondent took measures to prepare for the original November 2006 trial date, including examining the factual and legal elements of the problem. Respondent testified his first step was to conduct research, gather documents, and identify for which structures Brewis had obtained permits.

Respondent filed Maryland Public Information Act requests in order to further investigate the existence of old permits. Moreover, Respondent filed paperwork requesting old aerial photographs of the property and contacted the Board of Public Works Wetland Administration regarding a wetlands license that Brewis obtained in 1992. He contacted officials at the Anne Arundel County Code Enforcement and Inspec ⁵³¹ tion Division hoping to find exceptions for small scale repairs, and prepared summaries of the structures for which he could find permits and those for which no permits could be located. In addition, Respondent hired Permit Specialists to assist him in the filing of a building permit application, which would stay the District Court proceedings.

Respondent testified that two weeks before the February 1, 2007 trial date, he concluded that Permit Specialists would not be able to follow through on their assistance with site diagrams. As a result, Respondent contacted Dowling to testify at trial, if needed. Respondent testified he could have gone to trial on February 1, 2007, but this was not in the best interest of Brewis because Respondent’s directive was to solve all of the issues involved with the structures on both the 8215 address and the 8217 address. Respondent stated he was confident he would have been able to prove the disputed structures were not on the property of 8215, but this would have simply resulted in a complaint filed by the County against the 8217 property, which is owned by Brewis’s wife and step-daughter.

After signing the consent order, Respondent continued negotiations with the County, but was unsuccessful and assembled the materials necessary for a variance application and materials for a legal non-conforming use application. Dowling, a licensed surveyor and attorney, testified Respondent had an “excellent reputation” among lawyers generally in Anne Arundel County. Blumenthal, a qualified expert in land-use, administrative and real estate law, testified, in his opinion, Respondent did not competently handle Brewis’s legal matters in this case. Blumenthal perceived the consent order, which admitted certain structures were illegal, represented a significant impediment to resolution of the matter through administrative remedies. ⁵³² Blumenthal explained Respondent could not obtain the relief Brewis sought through the use of a variance, as a matter of law.

Ultimately, even though Blumenthal testified the amended decision of the Office of Planning and Zoning, produced by [Sterling Perry] Seay, [who approved Brewis’s legal non-conforming use application,] was “bizarre,” the consent order was not an impediment to the resolution of the dispute through administrative means. Seay found that the boathouses were eligible for legal noncomforming use status because the County Code had been changed only recently in 2005 to prohibit boathouses. These boathouses pre-existed the change in the County Code. Even though Blumenthal did not believe the February 1, 2007 consent order contained the flexibility needed to succeed through administrative means, Blumenthal admitted it would not be the norm and, in fact, an incredible feat to have negotiated an agreement with “absolutely no admission whatsoever of wrong doing or illegality of any of the structures.” Respondent’s thoroughness and preparation were not lacking in his overall handling of this matter.

This was not an easy problem; permits for all of the structures could not be found and Respondent did not have all the pieces necessary to put together the entire puzzle. As to Respondent’s overall handling of the case, the Court finds no violation of Rule 1.1. However, the Court finds that a reasonably competent attorney would know that express authority of the client is needed when entering into an agreement, culminating in a consent order of court, that purports to settle a dispute. In this case, Brewis testified that he did not have any knowledge of the consent order before the February 1, 2007 trial date.

In Brewis’s view, no discussions were held or specific plans made regarding entering into a consent order. In fact, Brewis had no knowledge of the consent order. Brewis testified he was unable to reach Respondent to discuss the consent order until May 2007. ⁵³³ Under these circumstances, Respondent had an opportunity to do the right thing. He knew he needed his client’s permission to settle the case; that is why he was attempting to contact Brewis by telephone.

He should have asked for a postponement. Even though Respondent testified he did not believe he would receive another postponement, and that he weighed the chances of attaining a postponement against the consequences of failing to be granted the continuance, he had a duty to seek a continuance when he was unable to contact his client and gain Brewis’s permission to enter into the consent order. If the request for a postponement was denied, he would be precluded from entering into any settlement without the knowing consent of his client. This lack of express authority is especially pertinent under these circumstances because the consent order admits the illegality of certain structures, agrees to the payment of a fine for County Code violations, and creates the legal obligation for Brewis to apply for permits within certain timeframes or face the removal of certain structures on his property.

As a result, the Court finds by clear and convincing evidence that Respondent’s conduct fell below the standard of a competent practitioner when he entered into the consent order of February 1, 2007, without the express authority of his client, thereby violating Rule 1.1 of the Maryland Rules of Professional Conduct. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter.

In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the ⁵³⁴ lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify. Respondent entered into the February 1, 2007 consent order without the express authority of Brewis because “he felt it was in his best interest,” and “the least poor choice among other poor choices.” Respondent testified that he did not recall whether he called Brewis five days prior to February 1, 2007, but admitted that he did not have any notes in the file that mentioned any such contact. Respondent admitted that he never spoke to Brewis about the February 1, 2007 proposed consent order that Duden sent him. Brewis testified that he never spoke with Respondent on February 1, 2007.

He also testified that he never gave Respondent any authority to enter into the February 1, 2007 consent order, stating that he had “no prior knowledge of this consent order being entered into.” Rule 1.2 states specifically that a “lawyer shall abide by a client’s decision whether to settle a matter.” Respondent did not speak with Brewis regarding the content of the consent order and had no way of knowing what Brewis’s decision would be. Respondent thereby entered into a consent order without appropriate authorization. As a result, the Court finds by clear and convincing evidence that Respondent violated Rule 1.2 of the Maryland Rules of Professional Conduct. Rule 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

Comment 3 to Rule 1.3 states: A client’s interest often can be adversely affected by the passage of time or the change of conditions ... [e]ven when the client’s interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer’s trustworthiness. In this case, Respondent entered into a consent order, pursuant to which Brewis had 30 days to apply for permits ⁵³⁵ for structures that may have been illegal or face removal of such structures. However, there is no evidence Respondent made any effort to contact Brewis regarding the existence of the consent order or its 30 day requirements. Respondent testified that the first time he spoke with Brewis regarding the consent order was late March.

In addition, Respondent admitted that he did not file any permit applications or requests for variances in the 30 day period required by the order. Not only did Respondent wait almost two months to inform his client of the existence of an unauthorized consent order, he did not pursue the required permits referred to in the order, subjecting his client to additional legal problems, including contempt of court. As a result, the Court finds by clear and convincing evidence that Respondent violated Rule 1.3 of the Maryland Rules of Professional Conduct. Rule 1.4 Communication: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined by Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Maryland Lawyers’ Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Respondent did not sufficiently communicate with his client, Brewis, either leading up to the February 1, 2007 trial date, or after signing the consent order. Even though Respondent testified he sent Brewis a fax with the new trial ⁵³⁶ date of February 1, 2007, Brewis denies ever receiving it, and Respondent did not have a receipt showing the fax went through. Brewis testified that he “never received any notice about a February 1, 2007 trial date.” Respondent’s attempts to reach Brewis by phone before February 1, 2007 were weak, as well.

Respondent testified he did not attempt to call Brewis until January 31, 2007, the day before the trial. Respondent ultimately was never able to contact Brewis on February 1, 2007, and did not even know Brewis was in Florida. Just as important, however, are Respondent’s actions after entry of the consent order. Respondent’s duty to communicate with Brewis is arguably even more important after entering into the consent order because additional legal obligations were created.

Respondent had an absolute duty to inform Brewis of the order because the clock was ticking on his ability to timely file permit applications for the disputed structures. In this case, there was absolutely no communication between Respondent and Brewis until late March 2007, well past the 30 day period outlined in the consent order. Furthermore, Brewis explained that once he was informed of the consent order by Dowling, he had great difficulty contacting Respondent. Brewis testified that he called Respondent’s cell phone and his office phone multiple times with no answer and no return calls.

Freeman testified when he first heard from Brewis in March or April 2007, he had problems contacting Respondent as well, making multiple phone calls and leaving multiple messages. As a result, the Court finds by clear and convincing evidence that Respondent has violated Rule 1.4 of the Maryland Rules of Professional Conduct. Rule 3.3 Candor Toward the Tribunal: (a) A lawyer shall not knowingly: ⁵³⁷ (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6. (c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. (e) Notwithstanding paragraphs (a) through (d), a lawyer for an accused in a criminal case need not disclose that the accused intends to testify falsely or has testified falsely if the lawyer reasonably believes that the disclosure would jeopardize any constitutional right of the accused.

Respondent did not exhibit sufficient candor towards the tribunal when entering the consent order in front of Judge Mosley. When Respondent and Duden agreed to the order, Respondent stated that he had “one small housekeeping chore;” he wanted to avoid the entry of a money judgment against Brewis. ⁵³⁸ Specifically, Respondent stated “we very much want to avoid the entry of a money judgment, so we have today paid the fines.” (emphasis added.) The use of the word “we” in this circumstance implies that Respondent’s client has consented to the fine and would like to avoid a money judgment. Respondent explained in his testimony he wanted to avoid a money judgment because Brewis is involved in finance and insurance and it is important to avoid money judgments due to his reliance on credit. The Court finds this explanation unpersuasive.

The fact that Respondent used “we” before the Court, coupled with the fact that Respondent paid the fine with his own money, never told Brewis about the fine, and never billed Brewis for payment of the fine, leads to the reasonable conclusion that Respondent was simply covering his own tracks and did not want Brewis to know about the consent order or the fine. As a result, the Court finds by clear and convincing evidence that this was a misrepresentation to the tribunal and Respondent’s intent was to keep the fine hidden from his client. Accordingly, Respondent violated Rule 3.3 of the Maryland Rules of Professional Conduct. Rule 8.4 Misconduct: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ 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.

As a result of the above findings, the Court finds by clear and convincing