Attorney Grievance Commission v. Brady

BARBERA, J. On March 1, 2010, the Petitioner, Attorney Grievance Commission, acting through Bar Counsel, brought a Petition for Disciplinary or Remedial Action (“Petition”) against the Respondent, attorney Andre Levell Brady. The petition concerned Respondent’s conduct related to the representation of a client, Sylvia Robinson-Green, in a civil matter. Bar Counsel alleged that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct (“MRPC”): 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.16 (terminating representation), 8.1 (bar admission and disciplinary matters), and 8.4 (professional misconduct). On March 2, 2010, we assigned the matter to the Honorable Larnzell Martin, Jr., of the Circuit Court for Prince George’s County, to conduct hearings and make findings of fact and conclusions of law pursuant to Maryland Rule 16-752(a) 1 and in accordance with Maryland Rule 16-757. 2 Petitioner was ⁴⁴⁶ unable to achieve personal service upon Respondent.

On February 4, 2011, Petitioner served the Client Protection Fund of the Bar of Maryland, pursuant to Maryland Rules 16-753 and 16-811(c)(l)(x). 3 On February 10, 2011, Petitioner filed an Affidavit of Service and Certification of Compliance with Maryland Rule 16-753. Respondent filed no answer. Petitioner filed a Motion for Order of Default and requested that the matter be scheduled for a hearing. The Motion was ⁴⁴⁷ granted on March 25, 2011, and a Notice of the Order of Default was sent to Respondent at his last known address.

Judge Martin held a hearing on April 27, 2011, that was then continued for further hearing on May 18. Respondent failed to appear on both dates. At the hearing, the factual allegations in the Petition for Disciplinary or Remedial Action were deemed admitted, pursuant to Maryland Rule 2-323(e). 4 In an Opinion dated May 25, 2011, Judge Martin found by clear and convincing evidence that Respondent violated MRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5(a) (unreasonable fee), 1.16 (termination of representation), and 8.4(d) (professional misconduct). 5 I. Judge Martin made the following findings of fact and conclusions of law: Findings of Fact The Respondent was admitted to the Bar of the Court of Appeals on December 28, 2004. On or about October 2008, Respondent was de-certified by Order of the Court of Appeals for failing to comply with his Pro-Bono Reporting requirement.

On or about April 6, 2009, Respondent was decertified by Order of the Court of Appeals for failing to pay his annual assessment to the Client Protection Fund of the Bar of Maryland. Respondent is also a member of the Bar of the District of Columbia. On or about April 30, 2009, the Respondent’s right to practice law in the District of Columbia was suspended for non-payment of dues. ⁴⁴⁸ During times relevant to this matter, Respondent maintained an office for the practice of law in Montgomery and/or Prince George’s Counties, Maryland. On or about April 21, 2009, Petitioner received a complaint from Sylvia Robinson-Green, (hereafter “Robinson-Green”).

The complaint alleged that Respondent represented the Complainant in a civil matter beginning on or about July 2006, that on or about April 2009 Respondent, without prior notification, failed to appear for a hearing and that Respondent’s failure to appear resulted in the dismissal of her case. Beginning on or about May 1, 2009, and continuing through June 5, 2009, Bar Counsel sent Respondent a series of letters notifying Respondent that Robinson-Green had made a complaint against him and requested that Respondent provide a written response to the allegations contained in Robinson-Green’s complaint. Some of these letters were returned by the Postal Service, but others were not returned. In a letter dated May 1, 2009, Respondent was also informed that it had come to Bar Counsel’s attention that he was not currently in good standing due to his de-certification for non-compliance with the Pro Bono Reporting requirements.

Respondent failed to respond to Bar Counsel’s letters requesting information concerning the complaint. On or about June 12, 2009, in an effort to locate the Respondent, Petitioner’s investigator, Dennis F. Biennas, contacted the company that leased office space to the Respondent and determined that Respondent no longer maintained an office at that address. Respondent failed to notify the Client Protection Fund of the Bar of Maryland of the change of his business address within 30 days of the change in accordance with Maryland Rule 16-811(e) 3. On or about June 9, 2009, Investigator Biennas was unable to locate Respondent at a residential address ob ⁴⁴⁹ tained by Petitioner.

He subsequently determined that the residence had been sold three months previously. Respondent failed to notify the Client Protection Fund of the Bar of Maryland of the change in his residential address within 30 days of the change in accordance with Maryland Rule 16-811(e) 3. At trial, Robinson-Green testified that in the end of 2005 or the beginning of 2006, she was looking for a lawyer because of problems she had with the purchase of her home. She went online and found Respondent’s name.

She contacted Respondent and he went over the contract and other paperwork for the transaction. Robinson-Green and Respondent met to discuss her problems at her home on more than one occasion. They never met at Respondent’s office. Respondent agreed to file a lawsuit against two business entities from which Robinson-Green purchased her home.

Respondent did not indicate that there would be any limitations on the amount of time he would be able to devote to her case. On or about July 9, 2007, Respondent provided Robinson-Green a Legal Services Agreement, (hereafter “the Agreement”), providing that Respondent’s firm would “bring or defend all claims and/or proceedings [against three or more entities] with respect to the settlement and construction defects at [Robinson-Green’s] residence ... and assert or controvert all issues therein.” The Agreement also called for an hourly fee of $220 per hour for member attorneys and lesser amounts for other attorneys and assistants. Only Respondent provided legal services to Robinson-Green. The Agreement called for an initial deposit of $1,300.

Robinson-Green was told to make payments in the amount of $1,300 on the first of each month. Robinson-Green made the initial payment and beginning in August 2007, made $1,300 monthly payments. The first payments were made through a service called PayPal. Subsequent payments were made by personal check.

Robinson-Green made the ⁴⁵⁰ monthly payments even though she did not receive statements indicating how many hours Respondent spent on the representation. Robinson-Green provided all information requested by Respondent. She also made all payments of fees requested by Respondent up until the time she tried to contact him to ask about the status of the case and was unable to get in touch with him. Court records reflect that on June 15, 2007, Respondent filed a civil action on behalf of Robinson-Green and her then husband against Caruso Homes, Inc., and Maryland Homes CY LLC.

Respondent subsequently filed an Amended Complaint. On October 19, 2007, both defendants filed a Motion to Dismiss Amended Complaint, or in the Alternative to Stay Action Pending Arbitration, and for Other Relief. On November 21, 2007, Caruso Homes, Inc., filed a Motion to Dismiss Plaintiffs Second Amended Complaint. Although Respondent filed a Line on December 13, 2007, indicating that the plaintiffs time for filing a responsive pleading was extended by agreement of the parties until December 24, 2007, Respondent did not file a response to either Motion on behalf of Robinson-Green.

On November 30, 2007, the Court dismissed with prejudice the plaintiffs Amended Complaint as to Caruso Homes, Inc., and Stayed the proceedings pending arbitration as to Maryland Homes CY, LLC. Respondent did not tell Robinson-Green about the defense Motion to Dismiss when it was filed in November 2007. She found out about the motion when she attended the Status Conference on March 21, 2008, and had not instructed him not to respond. On March 21, 2008, Robinson-Green attended a hearing in the Circuit Court for Prince George’s County for her case.

She had received a notice from the Court and thought she might be needed as a witness that day. Prior to this hearing she had not heard from Respondent for at least a week to ten days. She expected that Respondent would be ⁴⁵¹ there to represent her since Respondent had not informed her otherwise. Court records reflect that a Status Conference was scheduled for March 21, 2008, and that it was continued until May 2, 2008.

Robinson-Green did not hear from Respondent between March 21 and May 2, 2008. She tried to find another attorney to represent her before the May 2, 2008, Status Conference; however, she was not successful. Robinson-Green has not heard from Respondent since prior to March 21, 2008. He never provided an explanation for not continuing to represent her.

It is her opinion that Respondent did not earn the approximately $10,000 which she paid him. He has not refunded any of the fees. Robinson-Green’s complaint was dismissed. Her subsequent efforts to have it reinstated were not successful.

Robinson-Green would not have engaged Respondent to represent her if he had told her that he would be unable to continue to represent her through to the conclusion of the litigation. Conclusions of Law In the Petition for Disciplinary or Remedial Action, Petitioner alleged that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct (MRPC): 1.1, dealing with competence, 1.3, dealing with diligence, 1.4, dealing with communications with the client, 1.5(a), dealing with the reasonableness of fees, 1.16, dealing with the termination of representation, and 8.4(d), dealing with conduct prejudicial to the administration of justice. For the reasons set out below, this Court finds, by clear and convincing evidence that Respondent violated each of these rules. A. MRPC 1.1 MRPC 1.1 provides: A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. ⁴⁵² In June/July 2007, Respondent was engaged to represent Ms. Robinson-Green in connection with civil litigation. Although Respondent filed both an initial Complaint and a subsequent Amended Complaint, and obtained an extension of time in which to respond to the defendants’ Motion to Dismiss, he never filed a response to these Motions. On or about March 21, 2008, without explanation or prior notice to the client, Respondent failed to appear at a Status Conference thereby abandoning his client. The clear and convincing evidence established that, following the commencement of the litigation, Respondent completely failed to act to protect the client’s interests.

See, Attorney Grievance Comm’n v. Guido, 391 Md. 33, 54 , 891 A.2d 1085, 1097 (2006) (Even if an attorney possesses the necessary legal knowledge and skill to handle a particular case, the attorney may violate MRPC 1.1 by doing virtually nothing to pursue the case.); Attorney Grievance Comm’n v. Harris, 366 Md. 376, 402-403 , 784 A.2d 516, 531-32 (2001) (An attorney’s failure to appear in court for scheduled proceedings for which he was retained, without an acceptable explanation for the absence, violated MRPC 1.1.). B. MRPC 1.3 MRPC 1.3 provides that: A lawyer shall act with reasonable diligence and promptness in representing a client. As demonstrated above, there is clear and convincing evidence that Respondent failed to respond to the defendants’ Motions to Dismiss, failed to appear for a status conference on March 21, 2008 and abandoned the representation of Ms. Robinson-Green without notice or explanation. C. MRPC 1.4 MRPC 1.4 provides as follows: (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 in Rule 1.0(f), is required by these Rules; ⁴⁵³ (2) keep the client reasonably informed about the status of the matter; (S) promptly comply with reasonable requests for information; and (Jt) 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 violated MRPC 1.4 when he failed to keep Ms. Robinson-Green informed concerning the status of her case, failed to inform her about the pending Motions to Dismiss, failed to respond to Robinson-Green’s reasonable requests for information about the case and failed to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Respondent abandoned the client in the midst of litigation without prior consultation or notice. There is clear and convincing evidence that Respondent violated MRPC 1.4.

D. MRPC 1.5 MRPC 1.5(a) provides: A lawyer shall not make an agreement for; charge, or collect an unreasonable fee or an unreasonable am,ownt for expenses. While Respondent’s hourly rate of $220 per hour was reasonable at the time of the engagement, the total fee paid of approximately $10,000 was clearly unreasonable in light of the lack of services provided and Respondent’s abandonment of the representation. See, Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54 , 891 A.2d 1085, 1097 (2006) (When an attorney agreed to represent clients in an adoption case, and they paid him an agreed fee, while that fee was not, on its face, unreasonable for handling such a case, it became unreasonable, under MRPC 1.5(a), because ⁴⁵⁴ the attorney did virtually no work after he received the fee.); Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 392 , 794 A.2d 92, 103 (2002) (A fee for representing a client is unreasonable when the attorney provides little or no services in return for the money paid.). There is clear and convincing evidence that Respondent violated MRPC 1.5(a).

E. MRPC 1.16 MRPC 1.16 provides: (a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: (1) the representation will result in violation of the Maryland Lawyers’ Rules of Professional Conduct or other law; (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (3) the lawyer is discharged. (b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if: (1) withdrawal can be accomplished without material adverse effect on the interests of the client; (2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent; (3) the client has used the lawyer’s services to perpetrate a crime or fraud; (h) the client insists upon action or inaction that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; (5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; ⁴⁵⁵ (6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or (7) other good cause for withdrawal exists. (c) A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and properly to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the