Attorney Grievance Commission v. Barnett

WATTS, J. This attorney discipline proceeding concerns a Maryland lawyer who forged his client’s signature on an affidavit submitted to a circuit court, failed to communicate with his client and notify her of hearing dates, and made several misrepresentations of material fact to Bar Counsel during an investigation of his conduct. Michael Francis Barnett (“Barnett”), Respondent, a member of the Bar of Maryland, represented Sheila Wooden (‘Wooden”) in a child custody dispute. On October 12, 2011, Wooden filed a complaint against Barnett with the Attorney Grievance Commission (“the Commission”), Petitioner. On June 28, 2013, on the Commission’s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Barnett, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.2(a) (Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 3.3(a) (Candor Toward the Tribunal), 8.1(a) (Bar Admission and Disciplinary Matters), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).

On July 5, 2013, this Court designated the Honorable Maureen M. Lamasney (“the hearing judge”) of the Circuit Court for Prince George’s County to hear this attorney discipline proceeding. On October 25, 2013, the hearing judge conducted a hearing, at which Barnett represented himself. On December 26, 2013, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, ²⁵⁹ concluding that Barnett had violated MLRPC 1.1, 1.2(a), 1.3, 1.4, 3.3(a), 8.4(b), 8.4(c), 8.4(d), and 8.4(a). 1 On October 3, 2014, we heard oral argument. Bar Counsel was present but Barnett failed to appear.

Immediately following oral argument, we disbarred Barnett in a per curiam order. See Attorney Grievance Comm’n v. Barnett, 440 Md. 184, 185 , 100 A.3d 1144 , (Md.2014). We now explain the reasons for Barnett’s disbarment. 2 BACKGROUND The hearing judge found the following facts, which we summarize. On March 2, 2006, this Court admitted Barnett to the Bar of Maryland.

The facts relevant to the instant attorney discipline proceeding began on October 14, 2010, when Wooden, who was self-represented at the time, arrived late to a custody modification hearing before a Master. The Master prepared a Report and Recommendation in which he recommended that the Circuit Court for Prince George’s County (“the circuit court”) award custody of Wooden’s minor child to the child’s father. Upon her late arrival, Wooden was provided a “piece of paper” that stated she had ten days to submit “paperwork” to the circuit court to “change th[e] result.” 3 ²⁶⁰ On October 22, 2010, Wooden retained Barnett, who was then associated with the law firm of Malik Shakur, as her lawyer in the child custody case. 4 Wooden paid Barnett $2,500 in cash. Wooden retained Barnett for the sole purpose of excepting to the Master’s Report and Recommendation.

After their initial meeting, Wooden followed up with Barnett to confirm that he had timely submitted the “form.” Wooden had no further contact with Barnett until January 2011, when she telephoned him to confirm that the necessary papers had been filed. On October 27, 2010, as part of his representation of Wooden, Barnett filed Exceptions to the Master’s Report and Recommendation (“the Exceptions”), a Motion to Accept Electronic Recordings of the Proceedings as the Transcript (“the Motion to Accept Electronic Recordings”), and an Affidavit of Indigency. Barnett forged Wooden’s signature on the Affidavit of Indigency. Barnett did so without Wooden’s knowledge.

At no point during his representation did Barnett discuss with Wooden the filing of an Affidavit of Indigency. At the hearing, Wooden testified that she would have been able and willing to pay any fees associated with her case. The circuit court scheduled a hearing on the Exceptions for March 3, 2011. Barnett failed to notify Wooden of the hearing date, which the circuit court postponed until April 22, 2011.

Barnett again failed to notify Wooden of the hearing date. On April 22, 2011, Wooden failed to appear at the hearing, and Barnett withdrew the Exceptions without her knowledge. In January or February 2011, Barnett and Shakur ended their professional relationship, but agreed that Barnett would continue to represent Wooden. Shakur believed that Barnett retained the Wooden file.

Shakur notified Barnett via text message of the April 22, 2011, hearing date, after having received the hearing notice at his office. In addition to ²⁶¹ notifying Barnett of the hearing date, Shakur asked, “Do you have Shelia Wooden, right[?]” Barnett responded: “[0]kay.” On October 12, 2011, Wooden wrote a letter to the Commission, stating that she had not spoken with Barnett since January 2011. Bar Counsel, on the Commission’s behalf, initiated an investigation during which Barnett made numerous intentional misrepresentations. Specifically, Barnett stated that he spoke with Wooden after January 2011 and notified her of both hearing dates.

Barnett stated that he had not retained Wooden’s client file after his professional relationship with Shakur ended, and that he regained possession of the file in October 2011, after Wooden filed a complaint. The hearing judge determined that Barnett’s statements were inconsistent and not credible, and found that “it follows that [Barnett] knew he could not have contacted [] Wooden without [the file].” STANDARD OF REVIEW In an attorney discipline proceeding, this Court reviews for clear error a hearing judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of law. See Md. R. 16—759(b)(2)(B) (“The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney Grievance Comm’n v. Reno, 436 Md. 504, 508 , 83 A.3d 781, 783 (2014) (“[T]his Court reviews for clear error a hearing judge’s findings of fact[.]” (Citations omitted)); Md. R. 16-759(b)(l) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated the MLRPC.

See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.”). DISCUSSION (A) Findings of Fact and Conclusions of Law Neither party excepts to the hearing judge’s findings of fact; thus, we “treat the [hearing judge’s] findings of fact as ²⁶² established^]” Md. R. 16-759(b)(2)(A). Furthermore, neither party excepts to the hearing judge’s conclusions of law. 5 For the below reasons, we uphold all of the hearing judge’s conclusions of law. MLRPC 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.” MLRPC 1.1. “Compliance with [MLRPC 1.1] requires more than knowing what to do. It requires applying the knowledge to the client’s problem[.] Evidence of a failure to apply the requisite thoroughness and/or preparation in representing a client is sufficient alone to support a violation of [MLRPC] 1.1[.]” Attorney Grievance Comm’n v. Zhang, 440 Md. 128, 1129 , 100 A.3d 1112 (Md.2014) (citation and internal quotation marks omitted) (some alterations in original). In Attorney Grievance Comm’n v. Costanzo, 432 Md. 233, 253 , 68 A.3d 808, 819 (2013), we stated that a lawyer’s failure to submit “proper and required filings in a client matter demonstrates a lack of the appropriate preparation and thoroughness necessary to provide competent representation[,]” and constitutes a violation of MLRPC 1.1. (Citation and internal quotation marks omitted).

Here, clear and convincing evidence supports the hearing judge’s conclusion that Barnett violated MLRPC 1.1. Barnett ²⁶³ failed to notify Wooden of the March 3, 2011, and April 22, 2011, hearing dates. Barnett also failed to communicate with Wooden about the case and withdrew the Exceptions without her consent. Barnett, essentially, did nothing to advance or pursue the Exceptions.

Barnett forged Wooden’s signature on an Affidavit of Indigency, which falsely certified that Wooden could not afford the cost associated with the Exceptions action. Barnett did not discuss the content of the Affidavit with Wooden prior to its submission. Moreover, Wooden did not authorize Barnett to sign her name on the Affidavit, nor did she affirmatively consent or acquiesce to the Affidavit’s submission. MLRPC 1.2(a) (Allocation of Authority Between Client and Lawyer) “[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.” MLRPC 1.2(a). This Court has held that a lawyer’s “failure to prosecute a client’s case, combined with a failure to communicate with the client about the status of the case, constitutes a violation of MLRPC 1.2(a).” Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 223 , 46 A.3d 1169, 1177 (2012) (citations omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Barnett violated MLRPC 1.2(a). Wooden retained Barnett for the sole purpose of excepting to the Master’s Report and Recommendation, in which the Master recommended that the circuit court award custody of Wooden’s minor child to the child’s father.

Barnett filed the Exceptions, but did not notify Wooden of the March 3, 2011, and April 22, 2011, hearing dates and withdrew the Exceptions without Wooden’s consent. Moreover, in the months before and after the scheduled Exceptions hearing dates of March 3, 2011, and April 22, 2011, Barnett had no contact with Wooden. As stated above, Barnett also filed the Affidavit of Indigency ²⁶⁴ by forging Wooden’s signature without informing her of the filing. MLRPC 1.3 (Diligence) “A lawyer shall act with reasonable diligence and promptness in representing a client.” MLRPC 1.3. “An attorney violates [MLRPC 1.3] when he/she takes no action whatsoever in representing his/her client.” Attorney Grievance Comm’n v. Gray, 436 Md. 513, 520 , 83 A.3d 786, 790 (2014) (alteration in original) (citation and internal quotation marks omitted).

For example, a lawyer who fails to pursue a claim after filing a complaint or other pleading demonstrates “insufficient diligence” in the matter, in violation of MLRPC 1.3. Id. at 520 , 83 A.3d at 790 (citation omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Barnett violated MLRPC 1.3. Barnett filed the Exceptions, as well as a Motion to Accept Electronic Recordings, yet Barnett failed to notify Wooden that two hearings had been scheduled or that the circuit court granted the Motion to Accept Electronic Recordings.

Indeed, Barnett took no action in furtherance of the Exceptions. Instead, Barnett withdrew the Exceptions without Wooden’s consent or knowledge. By failing to pursue-—-and ultimately withdrawing—the Exceptions, Barnett failed to diligently represent Wooden. MLRPC 1.4 (Communication) MLRPC 1.4 provides, in pertinent part: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent ... is required by these Rules; (2) keep the client reasonably informed about the status of the matter; ... [and] (b) ... shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

(Paragraph breaks omitted). In Costanzo, 432 Md. at 254 , 68 A.3d at 820 , we held that a lawyer violated MLRPC 1.4(a)(2) where the lawyer failed to communicate, or promptly comply, ²⁶⁵ with his client’s requests for information—“apart from a few inadequate emails”—over a five-month period. Here, clear and convincing evidence supports the hearing judge’s conclusion that Barnett violated MLRPC 1.4. On October 22, 2010, Wooden retained Barnett as her lawyer.

On October 27, 2010, Barnett filed with the circuit court Exceptions, a Motion to Accept Electronic Recordings, and an Affidavit of Indigency. The circuit court granted the Motion to Accept Electronic Recordings and set a hearing date for March 3, 2011, which it later rescheduled to April 22, 2011. Barnett failed to notify Wooden of either hearing date, and for a period of ten months—between January 2011, when Wooden telephoned Barnett for a status update and October 12, 2011, when Wooden submitted her first letter to the Commission— Barnett had no contact whatsoever with Wooden. MLRPC 3.3(a) (Candor Toward the Tribunal) “A lawyer shall not knowingly! ] 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; ... [or] offer evidence that the lawyer knows to be false.” MLRPC 3.3(a).

Here, clear and convincing evidence supports the hearing judge’s conclusion that Barnett violated MLRPC 3.3. On October 27, 2010, on behalf of Wooden, Barnett filed an Affidavit of Indigency in support of the Motion to Accept Electronic Recordings. Barnett forged Wooden’s signature on the Affidavit of Indigency, which falsely certified that Wooden could not afford the cost associated with the Exceptions action. Aware of its falsity, Barnett nevertheless knowingly submitted the forged Affidavit of Indigency to the circuit court.

MLRPC 8.4(b) (Criminal Act) “It is professional misconduct for a lawyer to: ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects!.]” MLRPC 8.4(b). ²⁶⁶ “A person may not willfully and falsely make an oath or affirmation as to a material fact: ... in an affidavit or affirmation made under the Maryland Rules.” 6 Maryland Code Ann., Criminal Law (2002, 2012 Repl.Vol.) (“CR”) § 9-101(a) (Perjury). Furthermore, “[a] person may not or may not attempt to: [] willfully make a false entry in a public record[.]” CR § 8-606(b) (Making False Entries in Public Records and Related Crimes). In Attorney Grievance Comm’n v. Coppola, 419 Md. 370, 396 , 19 A.3d 431, 446 (2011), we held that a lawyer’s criminal conduct violated MLRPC 8.4(b). The lawyer violated CR § 8-606 by enabling and encouraging his client to forge estate documents, and then notarized and filed the falsified documents as part of the public record.

Id. at 396, 406, 19 A.3d at 446, 452-53