Attorney Grievance Commission v. Brown

CATHELL, Judge. Bar Counsel filed two Petitions for Disciplinary Action on behalf of petitioner, Attorney Grievance Commission, against Enroll Donnelly Brown, respondent, pursuant to Maryland Rule 16-709. Both petitions were consolidated for review before the Court of Appeals. The first petition (Misc.

Docket AG No. 2) alleges numerous violations of the Maryland Rules of Professional Conduct based on three separate complaints filed against respondent. The second petition (Mise. Docket AG No. 34) seeks a “reciprocal” sanction for respondent’s suspension for thirty days from the practice of law in the District of Columbia. We referred both petitions to circuit court judges for findings of fact and proposed conclusions of law.

They were ultimately heard by Judge James J. Lombardi. In the first petition, Judge Lombardi found clear and convincing evidence of all counts presented by petitioner. In the second petition, he found clear and convincing evidence of all but one count. We sustain the findings of fact.

We accept most of the court’s proposed conclusions of law as modified, infra. We shall suspend respondent indefinitely, with permission to apply for readmission after one year. I. Background Petitioner filed the first petition on March 12, 1998. The matter was referred to Judge Arthur M. Monty Ahalt who conducted a fact-finding hearing regarding this petition on June 1, 1998, and filed his findings of fact and proposed conclusions of law on June 30, 1998.

Respondent excepted to those findings and moved for a remand for new proceedings because he was absent from the hearing. We granted respondent’s motion on July 28,1998. ²⁷⁶ Petitioner filed the second petition on July 22, 1998. The two petitions subsequently were consolidated and both cases argued together on October 1,1998, before Judge Lombardi of the Circuit Court for Prince George’s County. Judge Lombardi made the following findings with respect to the first petition (Mise.

Docket AG No. 2): 1. Wanda Johnson, Esq. of the District of Columbia Bar, Kirk Wilder, Esq. of the Virginia Bar, and Erroll Donnelly Brown, Esq. of the Maryland Bar represented Tammie Davis in a lawsuit brought in the United States District Court for the Eastern District of Virginia alleging inter alia racial and gender discrimination in the work place. Davis v. P.R.C., Incorporated, Civil Action No. 94-938-A. At the end of discovery the defendant’s motion for summary judgment was granted. 2. At that time Ms. Johnson, Mr. Wilder, and Mr. Brown were each sanctioned by the Court at the request of the defendants, pursuant to 42 U.S.C. § 1988 , 42 U.S.C. § 1981 (a) and Rule 11 of the Fed. Rules Civ.

Proc. for “re-filing and pursuing a race discrimination complaint that had no evidentiary basis.” 3. Mr. Brown paid $14,000, which was his share of the sanctions imposed by the federal court. 4. Mr. Brown failed to respond to Bar Counsel’s request for information concerning the matter set forth above. 5. Erroll Donnelly Brown represented Rhonda Jones in a dispute with Johns Hopkins Hospital over the termination of her employment at the hospital.

In that regard he pursued two separate courses of action for Ms. Jones. One was a complaint for declaratory judgment in the Circuit Court for Baltimore City, Jones v. Johns Hopkins Hospital et al, Civil Action No. CE190143, seeking representation of counsel at the termination hearing at the hospital (so as to contest the reasons for the firing). The second was an effort to convince the Maryland Department of Economic and ²⁷⁷ Employment Development (“MDEED”) to amend the reasons for Ms. Jones’ firing from “gross misconduct” to “misconduct,” (so as to contest the reasons for her firing and to reduce the economic impact of her termination.) This was later appealed as Jones v. Johns Hopkins Hospital, Civil Action No. CL194784. 6. Mr. Brown introduced Ms. Jones to Kirk Wilder, Esq. of the Virginia Bar and advised her that Mr. Wilder would be assisting him on her case.

Mr. Wilder’s main office was in Virginia and Mr. Brown’s office was in Maryland. Mr. Wilder assisted Mr. Brown on cases in Maryland as an associate of Mr. Brown’s law firm. 7. Mr. Wilder’s name was on the pleading but he did not sign any pleadings as an attorney for Ms. Jones. He attended the MDEED hearing in December 1994 as an assistant to Mr. Brown.

No motion to admit Mr. Wilder pro hac vice was filed. Mr. Wilder never appeared in Circuit Court on this matter. 8. Mr. Brown was successful in having MDEED amend the reasons for Ms. Jones’ firing from “gross misconduct” to “misconduct.” Ms. Jones subsequently obtained new employment within thirty days of her termination from Johns Hopkins Hospital. 9. In the spring of 1996 the Circuit Court notified counsel and Ms. Jones of its decision to affirm the decision of MDEED with respect to Ms. Jonesf] administrative appeal and of its intention to dismiss the declaratory action seeking counsel at the termination hearing. 10.

Because of personal problems Mr. Wilder abruptly terminated his relationship with Mr. Brown in the Spring of 1996. This left Mr. Brown without assistance on many of his cases including the Jones case. 11. Ms. Jones attempted to contact Mr. Wilder and Mr. Brown concerning the dismissal notification and did not receive a timely response. ²⁷⁸ 12. Mr. Brown failed to promptly communicate with Ms. Jones or keep her fully apprised of developments in her case. 13.

Mr. Brown’s letterhead noted that Mr. Wilder is associated with Mr. Brown’s firm and listed a Virginia telephone number for Mr. Wilder. The letterhead did not specifically state that Mr. Wilder is only admitted to practice in Virginia. 14. Mr. Brown entered into a compromise settlement agreement and mutual release with Ms. Jones and paid her $1,150.00. 15. Mr. Brown failed to take substantive action on Ms. Jonesf] behalf; he failed to act with promptness and diligence, which caused the declaratory action to be dismissed. 16.

Mr. Brown failed to respond to Bar Counsel’s requests for information concerning the matter set forth above. 17. Erroll Donnelly Brown represented Clarence L. Blair in a lawsuit in the Circuit Court for Prince George’s County, Blair v. Chelsea Wood Condominium, Civil Action No. CAL05998 alleging the wrongful towing of Mr. Blair’s motor vehicle by the condominium association. 18. The defendant filed a Motion to Dismiss alleging that no such cause of action existed in Maryland. Mr. Brown did not appear at the hearing on the Motion to Dismiss and the court granted the motion and later granted attorney’s fees. 19.

Mr. Brown filed an appeal to the Court of Special Appeals of Maryland which affirmed the Motion to Dismiss but vacated the order granting attorney’s fees because the trial court found the suit to be “without merit” rather than the correct standard of “without substantial justification.” ²⁷⁹ 20. A remand hearing was set before the Honorable Audrey Melbourne [for] September 6, 1996 on the sole issue of attorney’s fees. 21. On September 3, 1996 Mr. Brown presented the Honorable Michelle D. Hotten (chambers judge) with a motion to withdraw his appearance on behalf of Mr. Blair. Mr. Brown neglected to inform Judge Hotten that the case was scheduled for a hearing three days later before Judge Melbourne.

The motion also sought the recusal of Judge Melbourne because of separate litigation in the United States District Court for the District of Maryland involving a client of Mr. Brown’s and the local Public Defender Office in which Judge Melbourne was a witness. 22. The motion falsely stated that Mr. Brown had an inherent conflict of interest with his client that prevented him from ethically representing Mr. Blair. Mr. Brown also falsely implied that Mr. Blair was unavailable and that there was no current telephone number that was available at the addresses Mr. Blair had provided. 23. Judge Hotten permitted Mr. Brown to withdraw his appearance but later rescinded her order and notified Mr. Brown’s office and Mr. Blair the night before the hearing. 24.

Mr. Brown did not appear at the September 6, 1996 hearing, nor did he give Mr. Blair notice that he was withdrawing from the case. 25. On September 6, 1996, at the hearing, Mr. Blair told Judge Melbourne that he had spoken to Mr. Brown the night before and that although he had changed his business address, his home address and phone number remained the same. Mr. Blair also stated at the hearing before Judge Melbourne concerning the lawsuit itself that he also felt there was legal justification and that is the reason that he filed. (Exhibit 35, page 4, line 24-25).

Judge Melbourne found that the lawsuit ²⁸⁰ was brought without substantial justification and divided the sanctions equally between Mr. Brown and Mr. Blair. 26. During the course of the litigation Mr. Brown’s office-mailing practices caused some delay in the mailings which affected the certificates of service. . However, the Court of Special Appeals did not take any action on this matter which was raised by defense counsel. 27. Mr. Brown knowingly and willfully failed to respond to Bar Counsel’s request for information concerning the matter set forth above. 28.

Erroll Donnelly Brown was admitted to practice as an attorney in Maryland in 1988. After serving with a private firm he established his own office for the practice of law in 1992 with a focus on employment law and Title VII matters. 29. In an attempt to build a regional practice in employment law he associated with attorneys in the District of Columbia and Virginia. One of the attorneys he associated with was Kirk Wilder, Esq. of the Virginia Bar. 30.

Since the grievance matters were filed against Mr. Brown he has taken significant corrective actions concerning the practice of law. He has scaled back his practice and has become more discriminating in the cases he accepts. He has embarked upon a program of conducting extensive pre-filing investigation of all potential lawsuits and of providing clients with written opinions concerning their cases. He has consulted with attorney-mentors from the National Bar Association to obtain assistance in various cases and to obtain case management software for his practice.

He has also obtained a secure mailbox with specific mailing procedures to alleviate any problems with certificate of service mailings. 31. Mr. Brown has promised to seek mental health counseling to deal with what he describes as “self-destruc ²⁸¹ tive procrastination tendencies concerning personal matters.” 32. Mr. Brown was candid at the hearing before the court. He acknowledged the errors that he had made in these cases and demonstrated a willingness to improve his practice of law.

Judge Lombardi reached the same conclusions that Judge Ahalt had in the earlier proceeding. Judge Lombardi found that in Ms. Davis’ case, respondent had violated Maryland Rules of Professional Conduct (MRPC) 3.1 (Meritorious claims and contentions), 8.1(b) (Bar admission and disciplinary matters), and 8.4(d) (Misconduct). Pertaining to Ms. Jones’ complaint, Judge Lombardi found that respondent had violated MRPC 1.3 (Diligence), 1.4(a)-(b) (Communication), 5.5(b) (Unauthorized practice of law), 7.1(a) (Communications concerning a lawyer’s services), 7.5(a)-(b) (Firm names and letterheads), 8.1(b), and 8.4(d). In Mr. Blair’s case, the judge found that respondent had violated MRPC 3.1, 3.3 (Candor toward the tribunal), 8.1(b) and 8.4(d).

The second petition (Mise. Docket AG No. 34) argued before Judge Lombardi alleged that on April 9, 1998, the District of Columbia Court of Appeals suspended respondent from the practice of law for thirty days. Judge Lombardi found, with respect to this petition, that: 1. Erroll Donnelly Brown was disciplined by the District of Columbia Court of Appeals on April 9, 1998 on a reciprocal matter from Maryland and because of the tendering of a check in the amount of $135.00 for a filing fee to the Superior Court of the District of Columbia which was returned for insufficient funds. 2.

Mr. Brown failed to respond to Bar Counsel’s requests for information concerning the matter set forth above. 3. The check in the amount of $135.00 was made good on July 10,1998. Judge Lombardi found that respondent had violated MRPC 8.1 and 8.4(c). Petitioner seeks a reciprocal sanction and excepts because Judge Lombardi did not rule that respondent ²⁸² violated MRPC 8.4(d) as alleged in the second petition.

Respondent has filed several exceptions, which we shall address, infra.

II

Discussion We stated in Attorney Grievance Commission v. Gavin, 350 Md. 176, 189 , 711 A.2d 193, 200 (1998), that: This Court has original and complete jurisdiction over attorney disciplinary proceedings. Md. Rule 16-709b; Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); Attorney Grievance Comm’n v. Kent, 337 Md. 361, 371 , 653 A.2d 909, 914 (1995); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992). Under our independent review of the record, we must determine whether the findings of the hearing judge are based on clear and convincing evidence. The “hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993)).

Accordingly, the ultimate decision as to whether a lawyer has violated professional rules rests with this Court. Garland, 345 Md. at 392 , 692 A.2d at 469 ; Attorney Grievance Comm’n v. Breschi, 340 Md. 590, 599 , 667 A.2d 659, 663 (1995). A. First Petition (Mise. Docket AG No. 2) 1.

Complaint Regarding Davis v. P.R.C., Inc. Respondent includes, among his exceptions, a challenge to the conclusion by the trial court that he has violated MRPC 3.1. The trial court’s findings relating to this allegation are found in paragraphs 1 through 3, supra, with regard to the case of Davis v. P.R.C., Inc., Civil Action No. 94-938A (E.D.Va.). ²⁸³ a. MRPC 3.1 (Meritorious claims and contentions) The findings of the trial court with regard to MRPC 3.1 are merely conclusory. Paragraph 1 of the findings describes the title and nature of the underlying lawsuit for which respondent was sanctioned and states that the defendant’s motion for summary judgment in that case was granted.

Paragraph 2 states that sanctions were assessed against respondent by the United States District Court for the Eastern District of Virginia. Paragraph 3 states that respondent was sanctioned $14,000. No other findings with respect to this matter were made. The trial court’s conclusion that respondent violated MRPC 3.1, therefore, was based completely on the sanction by the federal tribunal.

Although sanctions by other tribunals may constitute part of the findings supporting a conclusion that MRPC 3.1 has been violated, such sanctions cannot, standing alone without other findings, sufficiently prove such a violation occurred. In contrast to this case is Attorney Grievance Commission v. Alison, 349 Md. 623 , 709 A.2d 1212 (1998). In Alison , the attorney, a paralegal at the time of his misconduct, drafted a complaint for damages seeking $4,000,000 based upon the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68 , on behalf of a plaintiff whose car had been repossessed. After the complaint was filed in the Circuit Court for Baltimore City, the case was removed to the United States District Court for the District of Maryland.

The federal court sent the case back to the circuit court, but not before stating that had the complaint been filed in federal court first, sanctions for filing a frivolous complaint would have been appropriate. We noted that the circuit court dismissed the case with prejudice and the defense subsequently filed a motion under Maryland Rule 1-341 1 for sanctions. ²⁸⁴ In that case, unlike the case sub judice, the hearing judge to whom we referred the disciplinary matter, Judge Alfred L. Brennan, made specific findings as to the underlying facts regarding the filing of the frivolous complaint. We noted that Judge Brennan found the circuit court had made previous findings on the sanctions issue that Respondent [ (Alison) ] “ ‘controlled the direction of activities in this case’ ” and was without “ ‘a reasonable basis for believing that the claims would generate an issue of fact for the fact finder and therefore lacks substantial justification.’ ” In addition, the circuit court found that Respondent “led the charge and [trial counsel] followed his lead.” With regard to certain counts, the circuit court found that the attorneys “brought the RICO and fraud counts vexatiously for the purpose of harassing the defendants which in [the court’s] view amounts to bad faith under interpretations of Maryland Rule 1-341.” Furthermore, the circuit court found that Respondent added the RICO claim “solely to take advantage of the treble damages provision of the RICO statute in order to obtain an exorbitant settlement from the defendants,” and the RICO count “amounts to a claim brought in bad faith and without substantial legal or factual justification.” Id. at 632 , 709 A.2d at 1216 (third alteration in original). Judge Brennan then stated in his findings on the disciplinary charges: “In assessing sanctions, Judge [Thomas E.] Noel noted that he felt that Stuart L. Alison was more culpable and therefore, the amount of sanctions were fashioned accordingly.

There have been no less than four separate reviews by various judges deciding adversely to the Respondent concerning his pursuing this case. ²⁸⁵ * * * It is clear from an examination of this case that Stuart L. Alison was the captain of the ship and directed its course from beginning to end. This case was never worth $4,000,-000, but could have been resolved by a Writ of Replevin. Mr. Alison went after deep pockets, hoping to get a settlement from either a bank, an automobile agency, an attorney, or all of them.” Id. (alterations in original).

We went on to state: Judge Brennan then found by clear and convincing evidence that “the inclusion of a RICO count in the McAnulty case was totally without merit. [The United States District Court] was of the same opinion and would have imposed sanction under Rule 11, if allowed.” Based on these findings of fact, Judge Brennan concluded that Respondent violated Rule of Professional Conduct 3.1 stating that: “From a review of this case by the Judges who have been asked to rule on the merits of the various counts, the evidence is overwhelming that Stuart L. Alison engaged in filing these claims, after his actions were ruled upon by Judge Byrnes and Judge Noel.” Judge Brennan also concluded that Respondent violated Rule of Professional Conduct 4.4, noting that Ms. McAnulty’s suit “was an attempt to get to some deep pockets by using a shotgun approach[ ] and hoping to obtain a good settlement.” Finally, Judge Brennan concluded that Respondent violated Rule of Professional Conduct 8.4(d) and that his action, “wherein he included a RICO count in a Complaint that had absolutely no foundation of facts in the hopes of obtaining treble damages[,] is not to be condoned as acceptable practice of law.” Id. at 632-33 , 709 A.2d at 1216-17 (footnotes omitted) (alterations in original). In the case at bar, Judge Lombardi made no such independent appraisal in its findings of fact as to this specific alleged offense, but merely relied on the previous imposition of sanctions by the federal court and omitted from ²⁸⁶ his findings any other factual considerations. We accordingly overrule this finding. b. MRPC 8.4(d) (Misconduct) MRPC 8.4(d) states that it is misconduct to “engage in conduct that is prejudicial to the administration of justice.” Failure to adequately represent a client violates MRPC 8.4(d).

We held in Attorney Grievance Commission v. Ficker, 319 Md. 305, 315 , 572 A.2d 501, 506 (1990), that tardiness or absence from a trial may violate former Code of Professional Responsibility (Code) Disciplinary Rule (DR) 1-102(A)(5), 2 which contained virtually the same text as current MRPC 8.4(d). An attorney’s repeated failure to properly represent his clients and communicate with them violates DR 1-102(A)(5). Attorney Grievance Comm’n v. Montgomery, 318 Md. 154, 159 , 567 A.2d 112, 115 (1989) (Montgomery II). Finally, an attorney’s failure to prosecute a divorce claim and later neglecting to inform his client that he has been suspended also breaches DR 1-102(A)(5).

Attorney Grievance Comm’n v. Singleton, 315 Md. 1, 6 , 553 A.2d 222, 224 (1989). In this case, the record clearly and convincingly shows that respondent did not appear on behalf of his client at the fees and sanctions hearing. A letter from Ms. Jones also states that respondent failed to contact her around the time of the hearing. Respondent therefore violated MRPC 8.4(d). c.

MRPC 8.1(b)