Attorney Grievance Commission v. Brennan

WILNER, Judge. In a petition filed in July, 1997, the Attorney Grievance Commission (AGC) charged Eugene M. Brennan, Jr. with several violations of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC). The petition was triggered by a complaint made by Linda Gunn and arose from Brennan’s representation of Ms. Gunn’s son in a juvenile court proceeding and from his association and dealings with a suspended lawyer, Richard Allen James. In accordance with former Maryland Rule BV 9 b (current Rule 16-709b.), we referred the petition to Judge Lawrence H. Rushworth, of the Circuit Court for Anne Arundel County, to conduct a hearing and make findings of fact and proposed conclusions of law.

After conducting an evidentiary hearing, Judge Rushworth issued an opinion in which he found that Brennan had violated MLRPC Rules 1.3 (duty to act with reasonable diligence), 1.4 (communication with client), 8.3 (reporting MLRPC violations by another lawyer), and 8.4(a) and (c) (violating or assisting in the violation of MLRPC and conduct involving misrepresenta ⁴⁹¹ tion).' Judge Rushworth determined that there was insufficient evidence, however, to establish a violation of MLRPC Rules 5.4 (sharing fees with a non-lawyer), 5.5 (assisting a non-lawyer in activity constituting the practice of law), 8.1 (making a false statement or misrepresentation to an Inquiry Panel), or 8.4(d) (conduct prejudicial to the administration of justice). AGC filed exceptions to Judge Rushworth’s rulings on the alleged Rule 5.4, 5.5, and 8.1 violations and has recommended that Brennan be suspended for 18 months. Brennan has accepted the findings made with respect to Rules 1.3, 1.4, and 8.4, but believes that nothing greater than a reprimand is in order. We shall sustain AGC’s exceptions and suspend Brennan from the practice of law for 90 days.

BACKGROUND Brennan’s difficulty stems principally from his dealings with Richard Allen James. In July, 1984, we suspended James from the practice of law for two years, based on a similar suspension ordered in the District of Columbia. Attorney Griev. Comm’n v. James, 300 Md. 297 , 477 A.2d 1185 (1984).

The suspension arose essentially from James’s misuse and commingling of client funds and misrepresenting to his client and to the court what he had done. In December, 1993, we again suspended James, for one year, for having improperly endorsed a check payable to the Division of Parole and Probation and deposited it in his escrow account. Attorney Griev. Comm’n v. James, 333 Md. 174 , 634 A.2d 48 (1993).

That suspension was to commence January 12, 1994. Brennan first came to AGC’s attention in connection with James’s attempt to be reinstated. Former Md. Rule BV 13 a.2. (current Rule 16-713 a.2.) allowed a suspended attorney to recommence practice at the conclusion of the suspension period only after filing with Bar Counsel a verified statement that the attorney had complied in all respects with the terms of the suspension and upon notification by Bar Counsel to this Court that the statement had been filed and was acceptable.

James ⁴⁹² filed such a statement with Bar Counsel in January, 1995. In the course of investigating that statement, Bar Counsel determined that James had, in fact, been practicing law during the period of suspension and that Brennan had been assisting him in that practice, and he so informed this Court. We referred the matter to Judge McKee, of the Circuit Court for Prince George’s County, to conduct a hearing and make appropriate findings. Attorney Griev.

Comm’n v. James, 840 Md. 318 , 666 A.2d 1246 (1995). James claimed that Brennan had taken over his law practice and that James had been acting only as a law clerk or paralegal for Brennan. Judge McKee found otherwise, concluding from the evidence that “[t]o the public, it could reasonably have appeared that [James] continued to practice law,” that he “continued to draft legal documents, negotiate on behalf of clients, and even sign legal documents,” and that “[t]his combination of public appearance and internal operating procedure created an atmosphere where [James] continued to effectively hold himself out as a practicing attorney.” Id. at 332, 666 A.2d at 1252 . Judge McKee’s finding necessarily implied that Brennan was not acting solely in the role of supervising attorney, with James being merely a law clerk or paralegal, but that Brennan, in effect, assisted James in engaging in a prohibited practice of law.

That implicit determination, along with information coming to Bar Counsel’s attention regarding other matters in which both Brennan and James were involved, led Bar Counsel, in July, 1995, to file charges against Brennan for violating MLRPC Rules 5.3, 5.5(b), and 8.4(d). Although Brennan conceded taking over some of James’s cases without obtaining new retainer agreements, he denied any significant wrongdoing. At some point, not clear in the record now before us, the AGC Review Board found sufficient merit in Bar Counsel’s complaint to issue Brennan a private reprimand. On November 9, 1995, we denied James’s exceptions to Judge McKee’s findings and determined that James had never ⁴⁹³ actually served the one-year suspension ordered in December, 1993.

We therefore ordered that James serve that suspension, commencing November 12, 1995. In October, 1995, Linda Gunn, whom James had previously represented in other matters, called James in connection with some difficulties her son was facing. She was not aware that James was under suspension and was not informed of that fact. She and her husband went to James’s office in Greenbelt on October 16 to discuss James’s representation of the young man in the juvenile court matter.

James was behind the desk in his office. At some point, Brennan, whom James introduced as his “associate,” came in and remained throughout the 45-minute meeting as the case was discussed. Brennan was aware, of course, that James was not then authorized to practice law, and he was particularly aware that his involvement with James was currently, or had been, under scrutiny by Bar Counsel. James indicated that three hearings would be required and initially quoted a fee of $2,000 but eventually agreed to $1,500.

Ms. Gunn wrote a check to “A1 James” and gave it to James, who accepted it. During the meeting, James indicated that, as a result of some experiences involving his own son, he was aware that social, job placement, or medical resources existed that might be helpful to young Gunn and would try to contact those resources. Ms. Gunn assumed that James and Brennan would be “working together” on the case, although she said that, at the time, she was not certain that Brennan was even a lawyer. Ms. Gunn said that, although James “would look into some resources for us,” she believed that “when we were going to court, I assumed he was going to show up” and that Brennan was simply “helping him.” As the Gunns were leaving, James said that either he or Brennan would attend the hearings.

There was no discussion as to what part of the $1,500 fee belonged to Brennan, and no fee agreement was entered into between the Gunns and Brennan. James and Brennan later privately agreed that, of the $1,500 paid to James, $500 would be kept by him, as a fee, $1,000 would be paid, as a fee, to ⁴⁹⁴ Brennan, but James would retain $500 of Brennan’s share as Brennan’s contribution to rent. On October 24, 1995, Brennan appeared on behalf of Ms. Gunn’s son at a hearing before a Juvenile Court master. The Gunns were satisfied with the outcome and with the representation.

Brennan informed them that the son would have to appear at a review hearing on November 15, 1995, and that he would attend as well. Ms. Gunn called James’s office on November 14 to inquire about the hearing but was unable to reach either James or Brennan. Worse, Brennan did not appear at the hearing and, when attempts by the Gunns and the master to locate Brennan were unsuccessful, the hearing proceeded without him. Fortunately, because the lad had complied with the conditions imposed by the master, the disposition at the review hearing was favorable.

Although Brennan acknowledged having promised to appear at the review hearing, he later concluded that his presence “really isn’t necessary there.” He never communicated that change of view to the Gunns. On November 16, Ms. Gunn attempted, unsuccessfully, to reach Brennan, but she did speak with James, who promised to take the matter up with Brennan. After several further attempts to reach Brennan, all in vain, the Gunns filed a complaint with AGC. Only then did Brennan contact the Gunns, apologize for not having appeared, and return $1,000 of the $1,500 fee.

Upon those findings, Judge Rushworth found that, by failing to appear at the review hearing and failing to contact the Gunns following that non-appearance, Brennan violated MLRPC Rules 1.3 (A lawyer shall act with reasonable diligence and promptness in representing a client) and 1.4(a) (A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information). As noted, no exceptions were filed to those findings. The charges under MLRPC Rules 5.4, 5.5, 8.1, and 8.4 arose more from Brennan’s relationship with James than from his ⁴⁹⁵ representation of the Gunns. Rule 5.4(a) prohibits a lawyer from sharing legal fees with a non-lawyer, except as otherwise provided in that rule.

Rule 5.5(b) prohibits a lawyer from assisting a person who is not a member of the bar in the performance of activity that constitutes the practice of law. AGC contended that the Gunns consulted James, believing him authorized to practice law, that Brennan, knowing that James was not authorized to practice law, permitted the Gunns to continue in their mistaken belief, that he, in fact, shared the $1,500 fee with James, and that he thereby assisted James, who was not then a member of the bar, to perform activity that constituted the practice of law. Brennan’s defense to those charges was that James’s participation was solely to investigate the prospect of getting the young Gunn into a treatment or job training program, which did not constitute the practice of law, and that his share of the fee was for that service. As to those issues, Judge Rushworth found: “The evidence clearly and convincingly proves that the initial meeting was held as an initial consultation to discuss the possibility of representation and the legal fees.

Additionally, the evidence clearly and convincingly proves that James offered to investigate the availability of a treatment center and job training program for the Gunns’ son. The evidence also proves that during the initial consultation neither [Brennan] or James informed the Gunns that James was disbarred [sic, suspended]. Therefore, the Gunns could only have reasonably concluded that James was, in fact, licensed to practice law. However, the court cannot conclude, under the clear and convincing standard, that [Brennan] intended to misrepresent to the Gunns the status of James or that [Brennan] was attempting to assist James in the unauthorized practice of law.

While James may have offered some legal advice to the Gunns during the initial consultation, the case was handled entirely by [Brennan] and James’ involvement was solely limited to the investigation of a treatment center or job training for the minor Gunn. Although it is possible that [Brennan] did allow James to offer some legal advice to the Gunns about the ⁴⁹⁶ representation of their son, the evidence presented did not rise to the clear and convincing standard. Therefore, the court concludes that [Brennan] did not violate Rule 5.5. The court also concludes that the evidence simply does not rise to the clear and convincing standard to conclude that [Brennan] shared legal fees with James in violation of Rule 5.4.” Judge Rushworth then turned to the alleged violations of Rules 8.3 and 8.4.

Rule 8.3(a) requires a lawyer having knowledge that another lawyer has committed a violation of MLRPC that raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, to inform Bar Counsel. Rule 8.4(a) and (c) make it professional misconduct for a lawyer to violate MLRPC or knowingly assist another in doing so, and for a lawyer to engage in conduct involving dishonesty, fraud,