Attorney Grievance Commission v. Brigerman

BARBERA, C.J. On May 14, 2013, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (the “Petition”) against Respondent, attorney Ronald Claude Brigerman, Jr. The Petition alleged violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) in connection with Respondent’s abandonment of one client, failure to communicate with several clients, misrepresentation to a client and Petitioner, and failure to cooperate with Petitioner’s investigation. Specifically, the Petition alleged that Respondent violated MLRPC 1.1 (competence); MLRPC 1.2 (scope of representation and allocation of authority between client and lawyer); MLRPC 1.3 (diligence); MLRPC 1.4(a) and (b) (communication); MLRPC 1.15(a), (c), and (d) (safekeeping property); MLRPC 1.16(d) (declining or terminating representation); MLRPC 8.1(a) and (b) (bar admission and disciplinary matters); MLRPC 8.4(a), (c), and (d) (misconduct); and Maryland Rule 16-604 (trust account—required deposits). On May 20, 2013, this Court designated the Honorable Leah J. Seaton of the Circuit Court for Dorchester County (the “hearing judge”) to conduct an evidentiary hearing and render written findings of fact and conclusions of law. Respondent was served with process, in compliance with Maryland Rule 16-753, and, after he requested and was granted an extension, filed an Answer to the Petition for Disciplinary or Remedial Action on August 1, 2013.

The evidentiary hearing was held before the hearing judge on October 16, 2013. Thereafter, the hearing judge issued written findings of fact and conclusions of law, in which she concluded, by clear and convincing evidence, that Respondent ²⁸ had violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b) ; MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c), and (d); and Maryland Rule 16-604. On December 20, 2013, Petitioner filed Petitioner’s Exceptions and Recommendation for Sanction (“Petitioner’s Exceptions”), excepting to one of the hearing judge’s legal conclusions. Respondent filed no exceptions.

On September 4, 2014, this Court held oral argument. On September 10, 2014, we issued an Order of Remand, directing the hearing judge to clarify part of her discussion of the alleged mitigating circumstances in Respondent’s case. The hearing judge then issued Supplemental Findings and/or Conclusions of Law as to Mitigating Factors (“Supplemental Findings”) on September 30, 2014. Petitioner filed its response to the Supplemental Findings on October 9, 2014, and Respondent filed his response on October 14, 2014, in which he recommended a reprimand as the appropriate sanction for his misconduct.

Upon this Court’s review of the hearing judge’s findings of fact and conclusions of law, as well as the Supplemental Findings, we hold that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c) , and (d); and Maryland Rule 16-604. We further hold, under the particular circumstances of this case, that the appropriate sanction is indefinite suspension. I. We summarize, below, the hearing judge’s written findings of fact and conclusions of law: Respondent graduated from the University of Baltimore School of Law in 1989. Thereafter and until sometime in 1993, he worked in a non-lawyer capacity for State Farm Insurance Company.

From 1993 to 2001, Respondent handled bodily injury claims for Nationwide Insurance Company. Respondent was admitted to the Bar of this Court on December 16, 2003. ²⁹ The current disciplinary matter stems from three separate complaints brought by three of Respondent’s former clients, Kent Brummell, Renee Copper, and Terry Holden. Complaint of Kent Brummell In 2010, Kent Brummell (“Mr. Brummell”) retained Respondent to defend him in a criminal prosecution. Mr. Brummell was found guilty and sentenced to 35 years of incarceration.

On January 11, 2012, Mr. Brummell filed a complaint with Petitioner, citing Respondent’s failure to provide him with copies of documents from his case file. Mr. Brummell alleged that he had requested those documents several times prior to filing his complaint -with Petitioner but had received no reply from Respondent. Thereafter, Petitioner commenced an investigation. In a letter to Petitioner dated February 2, 2012, Respondent wrote that he never received Mr. Brummell’s requests for the documents, adding that he would forward the documents upon his receiving Mr. Brummell’s written request for the case file that included instructions on where to mail the file.

On February 23, 2012, Mr. Brummell sent Respondent a request for the documents and provided Respondent with instructions on where to send the file documents. Respondent did not reply to Mr. Brummell’s request. Petitioner sent letters dated May 17, 2012, June 6, 2012, and July 11, 2012, to Respondent at his P.O. Box mailing address, at which Respondent was able to receive mail. The letters requested that Respondent respond to Mr. Brummell’s complaint.

Respondent received the letters, but did not reply. An investigator for Petitioner visited Respondent’s office on August 7, 2012, and left his business card. That same day, Respondent called the investigator and said that he would send the documents to Mr. Brummell and respond to Petitioner’s letters. In a subsequent e-mail, the investigator told Respondent to notify Petitioner if there would be a delay in sending the documents.

On August 17, 2012, Respondent mailed Mr. Brummell’s documents, via certified mail, to the ³⁰ correctional facility in which Mr. Brummell was incarcerated, yet Respondent did not inform Petitioner or the investigator that he had done so until the evidentiary hearing. On August 8, 2012, Petitioner sent a letter to Respondent stating that the case would be formally docketed for an investigation and possible disciplinary action. Petitioner followed up with a certified letter on August 20, 2012, but the letter was returned unclaimed and without a response. Both letters were sent to Respondent’s physical office address, at which Respondent claimed he had difficulty receiving mail.

Respondent, however, had instituted mail forwarding from the physical address to his correct P.O. Box mailing address. The hearing judge found that Respondent had received the letters but failed to respond to Petitioner. Based on these facts, the hearing judge concluded that Respondent violated MLRPC 1.16(d); MLRPC 8.1(a) and (b); and MLRPC 8.4(a), (c), and (d). 1 Complaint of Renee Copper In or about March 2010, Renee Copper (“Ms. Copper”) retained Respondent to represent her in a personal injury claim resulting from an August 14, 2009, automobile accident. Respondent filed a lawsuit on behalf of Ms. Copper on September 22, 2011.

A trial date was set for June 22, 2012. In or about April 2012, Respondent advised Ms. Copper that the defendant’s insurance company, Progressive Insurance Company (“Progressive”), provided a settlement offer of $10,000. Ms. Copper authorized Respondent to accept the offer and dismiss the case. Respondent told Ms. Copper that he would do so and then inform her when the case was dismissed.

In May 2012, Progressive sent Respondent a $10,000 settlement check made payable to Respondent. On June 21, 2012, Respondent and defense counsel filed a Joint Line of Dismiss ³¹ al of Ms. Copper’s case. Respondent did not inform Ms. Copper of his receipt of the settlement check or the subsequent dismissal. Between June 1, 2012, and the scheduled trial date of June 22, 2012, Ms. Copper attempted to contact Respondent about her case and the settlement, but Respondent never replied.

Ms. Copper only learned that her case had been dismissed when she called the court about her matter. On or about June 22, 2012, Ms. Copper contacted Progressive directly and learned that Progressive had issued a $10,000 settlement check to Respondent approximately one month earlier. The check had not yet been negotiated. By chance, on August 18, 2012, Ms. Copper encountered Respondent at the Salisbury Mall.

She questioned him about the settlement check. Respondent told Ms. Copper that he had sent her a letter with the breakdown of settlement disbursements. Respondent never sent such a letter to Ms. Copper. Respondent also said that he would call Ms. Copper the following week, but he failed to do so.

On September 12, 2012, Ms. Copper once again ran into Respondent by chance at a local store. She questioned Respondent about the settlement check, and Respondent told her to meet him the next day. That following day, Respondent and Ms. Copper met and deposited the check in Respondent’s account. Respondent wrote Ms. Copper a check for her portion of the settlement proceeds.

Petitioner began investigating Ms. Copper’s complaint in early August 2012. Petitioner sent Respondent letters dated August 2, 2012, September 4, 2012, October 2, 2012, October 16, 2012, and October 31, 2012. Respondent received, but did not respond to, Petitioner’s letters. Based on these facts, the hearing judge concluded that Respondent violated MLRPC 1.3; MLRPC 1.4(a)(1), (2), and (3); MLRPC 1.15(d); MLRPC 8.1(b); and MLRPC 8.4(a), (c), and (d). 2 ³² Complaint of Terry J. Holden On June 6, 2012, Terry J. Holden (“Ms. Holden”) retained Respondent to represent her as a defendant in a civil matter involving Ms. Holden’s alleged failure to pay for contractual services involving a home improvement project.

The trial date was set for August 6, 2012, in the District Court sitting in Caroline County. Respondent met with Ms. Holden on June 6, 2012. Ms. Holden paid Respondent, by check, a flat fee of $2,500 and provided him court documents and photographs of her home. Sometime later, Respondent cashed the check without depositing or maintaining the fees in a trust account, and without receiving Ms. Holden’s informed consent not to deposit or maintain the fees in trust.

Respondent participated in a five-minute telephone call with a potential expert witness to discuss the contractor’s work in Ms. Holden’s case. Respondent did not perform any additional work on the matter. After the initial June 6, 2012, meeting, Ms. Holden attempted to contact Respondent, but she was unable to reach him. Ms. Holden left several messages for Respondent between July 31, 2012, and August 3, 2012, none of which Respondent returned.

On or about August 1, 2012, Ms. Holden filed a pro se notice of intention to defend her case in the District Court. Shortly thereafter, she filed a complaint with Petitioner. The hearing judge found that, during the course of Petitioner’s investigation, Respondent received, but did not respond to, letters from Petitioner dated August 29, 2012, September 27, 2012, November 15, 2012, and November 27, 2012. Based on these facts, the hearing judge concluded that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a)(1), (2), and (3) and (b); MLRPC 1.15(a) and (c); MLRPC 1.16(d); MLRPC 8.1(b); MLRPC 8.4(a) and (d); and Maryland Rule 16-604. 3 ³³ Mitigating and Aggravating Factors In response to this Court’s Order of Remand, the hearing judge submitted Supplemental Findings in which she found, by a preponderance of evidence, several mitigating factors.

First, the hearing judge found that Respondent “is remorseful for ‘dropping the ball’ in Ms. Holden’s case” and has “openly acknowledged his failures in that case, and apologized for his inaction.” The hearing judge acknowledged, though, that “Respondent’s remorse did not cause him to take any corrective action” until the October 16, 2013, evidentiary hearing when he stated that he “was prepared to provide a refund.” Petitioner informed this Court at oral argument that Respondent did provide the promised refund to Ms. Holden by handing her a money order for $2,500 on the day of the evidentiary hearing. Second, the hearing judge found “that Respondent’s marital and custody difficulties beginning in October 2011 and lasting through 2012” constitute a mitigating factor. The hearing judge explained that “Respondent credibly testified that he went through a divorce and experienced significant custody issues regarding his youngest daughter, which took an emotional toll on him.” Finally, the hearing judge found that “Respondent has not been formally disciplined previously for any professional misconduct and is not currently the subject of any other complaints to the Attorney Grievance Commission.” The hearing judge further found, however, that “Respondent took no responsibility for his mistakes in Mr. Brummell’s and Ms. Copper’s cases” and repeatedly disregarded “communications and requests from Mr. Brummell and Ms. Copper.” Also, “[wjhatever stress [Respondent] was under as a result of his marital breakup does not justify his seven month disregard of Mr. Brummell’s request for his file, and ignoring Ms. Copper’s request for her settlement check.” Furthermore, Respondent “displayed] an indifference to the disciplinary ³⁴ legal process” when he ignored repeatedly communications from Bar Counsel.

II

In attorney discipline proceedings, this Court “has original and complete jurisdiction and conducts an independent review of the record.” Attorney Grievance Comm’n v. Page, 430 Md. 602, 626 , 62 A.3d 163 (2013). We accept the hearing judge’s findings of fact as correct unless shown to be clearly erroneous. Attorney Grievance Comm’n v. Lara, 418 Md. 355, 364 , 14 A.3d 650 (2011). Neither Respondent nor Petitioner filed exceptions to the hearing judge’s findings of fact.

We therefore treat those findings as established. See Md. Rule 16-759(b)(2)(A). We review de novo the hearing judge’s conclusions of law. Md. Rule 16-759(b)(l); Page, 430 Md. at 626 , 62 A.3d 163 .

The ultimate decision as to whether an attorney has engaged in professional misconduct lies with this Court. Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 717 , 93 A.3d 262 (2014).

III

Petitioner’s Exception Respondent did not file any exceptions to the hearing judge’s conclusions of law. Petitioner filed one exception to the hearing judge’s legal conclusion that Respondent violated MLRPC 8.4(c), “by misrepresenting to Ms. Copper that he mailed her a letter containing a settlement breakdown.” Petitioner agrees that the hearing judge’s factual findings support that Respondent made this misrepresentation. Petitioner nonetheless argues that, because Petitioner did not charge Respondent with a violation of MLRPC 8.4(c) in connection with his representation of Ms. Copper, the hearing judge was precluded from finding that Respondent violated that rule while representing Ms. Copper. ³⁵ We agree. This Court has held that “an attorney may not be found guilty of violating a Rule of Professional Conduct unless that Rule is charged in the Petition For Disciplinary or Remedial Action.” Attorney Grievance Comm’n v. Sapero, 400 Md. 461, 487 , 929 A.2d 483 (2007).

This is because “notice should be given to the attorney of the charges made and opportunity afforded him for explanation and defen[s]e.” In re Ruffalo, 390 U.S. 544, 550 , 88 S.Ct. 1222 , 20 L.Ed.2d 117 (1968). We therefore sustain Petitioner’s exception to the hearing judge’s conclusion that Respondent violated MLRPC 8.4(c) in connection with Respondent’s representation of Ms. Copper. Respondent’s Misconduct Based upon our de novo review of the hearing judge’s remaining conclusions of law, we conclude that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.15(a), (c), and (d); MLRPC 1.16(d); MLRPC 8.1(a) and (b); MLRPC 8.4(a), (c), and (d); and Maryland Rule 16-604. MLRPC 1.1 MLRPC 1.1 states that “[a] lawyer shall provide competent representation to a client.” We have held that “[a] failure to make the proper and required filings in a client matter demonstrates a lack of the appropriate preparation and thoroughness necessary to provide competent representation.” Attorney Grievance Comm’n v. Shakir, 427 Md. 197, 205 , 46 A.3d 1162 (2012); see also Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 223 , 46 A.3d 1169 (2012) (holding that an attorney violated MLRPC 1.1 by failing to take the “necessary, fundamental steps to further the clients’ case[ ]”).

Respondent violated MLRPC 1.1, in connection with his representation of Ms. Holden, when he accepted Ms. Holden’s fee and subsequently failed to provide her with competent or meaningful legal services. Respondent took a $2,500 fee from Ms.