Attorney Grievance Commission v. Blair

BATTAGLIA, J. Floyd Reynard Blair, Respondent, was admitted to the Bar of this Court on June, 19, 2002. On September 30, 2013, the Attorney Grievance Commission, (“Petitioner” or “Bar Coun ³⁹³ sel”), acting pursuant to Maryland Rule 16-751(a), 1 3 4 filed a “Petition For Disciplinary or Remedial Action” against Respondent, related to a complaint filed by Ms. Cheryl Nelson, which involved Respondent’s acceptance of a $1,500.00 retainer from her, Respondent’s failure to competently represent her and Respondent’s abandonment of her as a client. Petitioner alleged that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct (“Rule”): 1.1 (Competence), 2 1.3 (Diligence), 3 1.4(a)(2) (Communication), 4 1.5(a) (Fees), 5 Rule 1.15(a) and (c) (Safekeeping Property), 6 1.16(d) ³⁹⁴ (Declining or Terminating Representation), 7 and 8.4(a), (c) and (d) (Misconduct). 8 In an Order dated October 1, 2013, we referred the matter to Judge Robert A. Greenberg of the Circuit Court for Mont ³⁹⁵ gomery County for a hearing, pursuant to Rule 16-757. 9 Respondent was personally served with the Petition for Disciplinary or Remedial Action, our Order, the Writ of Summons, Interrogatories, a Request for Production of Documents, and a Request for Admission of Facts and Genuineness of Documents, but did not file a response to the Petition, to the discovery requests, or to the Requests for Admission. Bar Counsel filed a Motion for an Order of Default on January 13, 2014, which was granted.

A hearing was set for March 5, 2014, but was continued to enable Respondent to move to vacate the default, should he choose to do so, which he did not. A hearing, which Respondent did not attend, was held on March 25, 2014. After the hearing, Judge Greenberg issued ³⁹⁶ Findings of Fact and Conclusions of Law in which he found, by clear and convincing evidence, that Respondent violated all the Rules alleged by the Petitioner: Rules 1.1, 1.3, 1.4(a)(2), 1.5(a), 1.15(a) and (c), 1.16(d), and 8.4(a), (c) and (d) of the Maryland Lawyers’ Rules of Professional Conduct. Judge Greenberg made the following findings regarding Respondent’s background and representation of Ms. Nelson: On or about November 10, 2011, Complainant Cheryl A. Nelson retained Respondent for representation in a family law custody case, Troy D. Nelson, Sr. v. Cheryl A. Nelson, Case No. 24D 11003128 in the Circuit Court for Baltimore City.

Ms. Nelson paid Respondent $1,500.00 in furtherance of that representation. Despite the agreement to represent Ms. Nelson, Respondent provided no services of value whatsoever in furtherance of the representation and ultimately abandoned the representation. By the time Ms. Nelson retained Respondent, an order of default had been entered against her. Respondent filed a motion to vacate the order of Default, but the Court rejected this motion because the attorney appearance fee ($20.00) was not paid and because the certificate of service did not address plaintiffs counsel.

Despite being informed of these omissions, Respondent never corrected them and never submitted an amended motion. Respondent also failed to appear for a subsequent hearing in Ms. Nelson’s case on June 19, 2012, even though Ms. Nelson, upon receipt of the court’s notice, promptly informed Respondent of the date. Thereafter, Respondent did nothing further in Ms. Nelson’s case. As a result of Respondent’s failure to complete the representation, and more specifically, Respondent’s failure to appear on June 19, 2012, Ms. Nelson contacted Respondent and terminated the representation.

Ms. Nelson also requested that Respondent return the $1,500.00. Although Respondent agreed to refund this amount, Respondent has never returned the $1,500.00 to Ms. Nelson. ³⁹⁷ Respondent failed to maintain any records concerning his representation of Ms. Nelson. On December 18, 2012, Respondent stated to Edwin Karr, an Investigator with the Attorney Grievance Commission, that he has no records to demonstrate that he earned the $1,500.00 or that the $1,500.00 was reasonable. Respondent also stated to Mr. Karr that he no longer had Ms. Nelson’s case file.

Respondent failed to deposit the $1,500.00 into a trust account upon receipt. Respondent did not have Ms. Nelson’s informed consent, confirmed in writing, to a different arrangement. Additionally, Respondent failed to perform any meaningful services in furtherance of the representation of Ms. Nelson to earn the $1,500.00 fee. Based upon these findings, Judge Greenberg determined that Respondent violated Rules 1.1, 1.3 and 8.4(a) and (d) by failing to perform legal work of value for Ms. Nelson and by retaining an undeserved fee: Failing to pursue a client’s case after taking a fee, even if the attorney knows what to do, violates Rule 1.1.

See Attorney Grievance Commission v. McCulloch, 404 Md. 388, 397-98 , 946 A.2d 1009, 1015 (2008) (quoting Attorney Grievance Commission v. Guida, 391 Md. 33, 54 , 891 A.2d 1085, 1097 (2006)) (“Compliance with [Rule 1.1] requires more than knowing what to do. It requires applying the knowledge to the client’s problem. The Court of Appeals has said, “Evidence of a failure to apply the requisite thoroughness and/or preparation in representing a client is sufficient alone to support a violation of Rule 1.1.” ”). Failures in pursuing a client matter also demonstrate a lack of “diligence and promptness” in violation of Rule 1.3.

McCulloch, id. (“The evidence shows that respondent failed to act with ‘diligence and promptness’ as required by Rule 1.3, for the same reasons discussed under Rule 1.1 ...’”). As in McCulloch and Guida , Respondent took a fee from Ms. Nelson and aside from filing a deficient motion, essentially abandoned the representation. Therefore, Respondent violated Rules 1.1, 1.3 and 8.4(a) and (d).

See McCulloch, id. at 401, 946 A.2d at 1017 (“Respondent’s failure to pursue ³⁹⁸ her client’s objectives ... communicate with her client, or refund an unearned fee are all prejudicial to the administration of justice.”) Attorney Grievance Commission v. Gerace, 433 Md. 632, 645 , 72 A.3d 567, 574-575 (2013) (Citing Attorney Grievance Commission v. Nelson, 425 Md. 344, 363 , 40 A.3d 1039, 1050 (2012) (“Rule 8.4(a) is violated when other Rules of Professional conduct are breached.”)) Judge Greenberg determined, additionally, that Respondent violated Rule 1.4(a)(2) by failing to keep Ms. Nelson reasonably informed about her case: Respondent failed to communicate with Ms. Nelson in order to keep her reasonably informed about the status of her case. Following Ms. Nelson’s final payment toward the $1,500.00 retainer, Ms. Nelson believed that Respondent was proceeding with her case, which included filing a motion to vacate the order of default that had been entered in her case. Ms. Nelson learned that Respondent had not done anything to proceed with the representation when she received correspondence from the court indicating that the order of default had not been vacated. When she contacted Respondent, Respondent conceded that he had not filed the appropriate motion.

When Ms. Nelson contacted the clerk’s office thereafter, she learned that Respondent had not entered his appearance as her attorney, which was why she, and not Respondent, was receiving court correspondence. When she contacted Respondent again, Respondent assured Ms. Nelson that he would take care of the deficiencies. Respondent never did so, however, and failed to inform Ms. Nelson that he had not done anything to advance the representation or resolve the procedural deficiencies. After Respondent had filed the deficient motion to vacate, Respondent failed to inform Ms. Nelson that he had not filed a corrected motion.

Respondent also never informed Ms. Nelson that he would be unable to do so, that he had relocated to Georgia since the commencement of the representation, or that he would have difficulties in representing her adequately. Consequently, Respondent violated Rule 1.4(a)(2). ³⁹⁹ Judge Greenberg also found that Respondent violated Rules 1.5(a), 1.15(a) and (c), and 1.16(d). Judge Greenberg found that the $1,500.00 fee, although not unreasonable on receipt, became unreasonable in violation of Rule 1.5(a), when Respondent failed to perform any legal services benefitting Ms. Nelson. Judge Greenberg concluded, additionally, that Respondent’s actions of depositing the unearned fee in an account other than an attorney trust account, subsequently abandoning the representation of Ms. Nelson and failing to refund the unearned fee violated Rules 1.15(a) and (c) and Rule 1.16(d): The $1,500.00 fee paid to Respondent by Ms. Nelson for the representation, while not on its face unreasonable, became unreasonable because Respondent failed to provide any meaningful services of value to earn the fee and failed to return the fee.

Respondent’s conduct in this regard violated Rule 1.5(a). See Guido, id. at 52-53, 891 A.2d at 1096-97 (2006) (“although $735.00 as a fee for a relatively straightforward adoption may not be unreasonable on its face, in the context of Guida’s failure to perform the services to any meaningful degree ... the fee became unreasonable.”). Additionally, Respondent’s failure to deposit and maintain this money in an Attorney Trust Account, without the written informed consent from Ms. Nelson to do something different with the money, violates Rule 1.15(a) and (c) of the MLRPC. Respondent’s failure to withdraw from the representation and failure to return the unearned fee to Ms. Nelson represents a violation of Rule 1.16(d).

Judge Greenberg, finally, determined that Respondent violated Rules 8.4(c) and (d) by depositing the unearned fee into an account other than an attorney trust account, by failing to perform any legal work of value for Ms. Nelson and by failing to refund the fee: Lastly, Respondent took $1,500.00 and did not perform any legal services in exchange for that payment. As noted ⁴⁰⁰ above, Respondent did not deposit this money into an ATA, did not earn the $1,500.00 fee, and did not refund the $1,500.00 to Ms. Nelson at any time. Respondent’s conduct in this regard violates Rule 8.4(c) and (d). See, e.g., Attorney Grievance Commission v. Gallagher, 371 Md. 673, 712 , 810 A.2d 996, 1019 (2002) (“This Court has consistently found misappropriation of client funds and deceit to constitute a violation of MRPC 8.4(c)”) (additional citations omitted).

Judge Greenberg noted, additionally, that Respondent presented no mitigating circumstances for his behavior: As the Respondent did not appear at the hearing, no evidence was presented regarding any remedial action relevant to the allegations, and the court makes no findings in that regard. It does note, however, that Respondent did not respond to [the] Request [for Admission of Facts and Genuineness of Documents], and thereby agreed that he could present no mitigating circumstances related to his conduct. (internal citations to evidentiary exhibits omitted). Respondent also failed to appear at oral argument before this Court on September 3, 2014. “This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland.” Attorney Grievance v. O’Leary, 433 Md. 2, 28 , 69 A.3d 1121, 1136 (2013), quoting Attorney Grievance v. Chapman, 430 Md. 238, 273 , 60 A.3d 25, 46 (2013).

We conduct an independent review of the record and we accept the hearing judge’s findings of fact unless shown to be clearly erroneous. Attorney Grievance v. Lara, 418 Md. 355, 364 , 14 A.3d 650, 656 (2011). “If no exceptions are filed, we may treat the hearing judge’s findings of fact as established for the purpose of determining the appropriate sanction” pursuant to Rule 16-759(b)(2)(A). 10 Id. ⁴⁰¹ We conduct a de novo review of the hearing judge’s conclusions of law. Rule 16—759(b)(1); 11 O’Leary, 433 Md. at 28, 69 A.3d at 1136 . Bar Counsel has not filed any exceptions to Judge Green-berg’s findings of fact and conclusions of law and recommends disbarment.

Respondent has not filed any exceptions. As a result, we accept Judge Greenberg’s findings of fact as established for the purpose of determining an appropriate sanction. Rule 16—759(b)(2)(A). Upon our de novo review of the record, we agree with Judge Greenberg that Respondent violated Rules 1.1, 1.3, 1.4(a)(2), 1.5(a), 1.15(a) and (c), 1.16(d), and 8.4(a), (c), and (d).

Rule 1.1 “requires an attorney to provide competent representation to his/her client by applying the appropriate knowledge, skill, thoroughness, and preparation to the client’s issues.” Attorney Grievance v. Shakir, 427 Md. 197, 205 , 46 A.3d 1162, 1167 (2012). “Evidence of a failure to apply the requisite thoroughness and/or preparation in representing a client is sufficient alone to support a violation of Rule 1.1.” Attorney Grievance v. McCulloch, 404 Md. 388, 398 , 946 A.2d 1009, 1015 (2008), quoting Attorney Grievance v. Guida, 391 Md. 33, 54 , 891 A.2d 1085, 1097 (2006). We have previously noted that “a failure to appear at a client’s hearing is a complete failure of representation.” Shakir, 427 Md. at 205 , 46 A.3d at 1167 , citing Attorney Grievance v. Harris, 366 Md. 376, 403 , 784 A.2d 516, 531 (2001). Here, Respondent filed a motion to vacate on Ms. Nelson’s behalf that failed to contain a certifícate of service and was filed without the requisite attorney appearance fee. He did not correct the deficiency when asked and, thereafter, abandoned representation.

Re ⁴⁰² spondent, additionally, failed to appear on behalf of Ms. Nelson at a hearing. Accordingly, we agree with Judge Green-berg that Respondent failed to competently represent Ms. Nelson; therefore, he violated Rule 1.1. Rule 1.3 requires an attorney to act with diligence and promptness in representing his or her client. McCulloch, 404 Md. at 398 , 946 A.2d at 1015 .

Similar to Rule 1.1, an “attorney violates Rule 1.3 when he or she does ‘nothing whatsoever to advance the client’s cause or endeavor.’ ” Attorney Grievance v. De La Paz, 418 Md. 534, 554 , 16 A.3d 181, 193 (2011), quoting Attorney Grievance v. Bahgat, 411 Md. 568, 575 , 984 A.2d 225, 229 (2009). In Attorney Grievance v. Tinsky, we determined Tinsky violated Rule 1.3 when he did not act with reasonable diligence in his representation of a client by waiting two years to file a bankruptcy petition, failing to correct the petition’s deficiencies, and failing to file a necessary motion. 377 Md. 646, 651 , 835 A.2d 542, 544-45 (2003). Here, Respondent’s failure to correct the omissions in the deficient motion he filed and his failure to appear on Ms. Nelson’s behalf at her hearing violated Rule 1.3. Rule 1.4(a)(2) requires an attorney to keep a client reasonably informed about the status of his or her case.

An attorney violates 1.4(a)(2) when he or she fails to communicate with a client that he or she has terminated representation or fails to respond to a client’s repeated requests for information. See Attorney Grievance v. Costanzo, 432 Md. 233, 254 , 68 A.3d 808, 820 (2013) (attorney violated 1.4(a)(2) by failing to communicate with his client that a settlement offer was rejected and by failing to respond to his client’s repeated requests for information). Here, Respondent failed to communicate to Ms. Nelson that he did not correct the inadequate pleading he filed on her behalf and that he had not done anything to advance his representation of her. He, additionally, did not inform Ms. Nelson that he would not be able to competently represent her or refile the motion, as he had relocated to Georgia since beginning her representation.

Respondent’s failure to com ⁴⁰³ municate with Ms. Nelson is, therefore, a violation of Rule 1.4(a)(2). Under Rule 1.5(a), an attorney may not charge an unreasonable fee. An advance fee given in anticipation of legal service that is reasonable at the time of the receipt can become unreasonable if the attorney does not perform the agreed-upon services. Guida, 391 Md. at 52-53 , 891 A.2d at 1096-97 ; see also Shakir, 427 Md. at 205 , 46 A.3d at 1167 (attorney violated 1.5(a) when he accepted a fee and then failed to perform the agreed-upon services on the client’s behalf).

Respondent’s $1,500.00 fee became unreasonable when he failed to provide Ms. Nelson with any legal services of value. Respondent, consequently, violated Rule 1.5(a). Rules 1.15(a) and (c) require that an attorney deposit advance fees into an attorney trust account unless the client gives informed consent in writing to a different arrangement, and additionally, require that an attorney keep records of the fees. We have noted: Funds given in anticipation of future legal services qualify as trust money and, accordingly, are to be deposited in trust accounts separate from the attorney’s property, to be removed promptly by the attorney as earned.

To deposit such trust money into the attorney’s personal or operating accounts before the fees are earned constitutes a violation of MRPC 1.15(a). Attorney Grievance v. Webster, 402 Md. 448, 463-64 , 937 A.2d 161, 170 (2007), quoting Guida, 391 Md.