Attorney Grievance Commission v. Brown

HARRELL, J. The Attorney Grievance Commission, acting through Bar Counsel (Petitioner), filed a petition for disciplinary or remedial action, pursuant to Maryland Rule 16-751(a)(l), 1 against Barry S. Brown, Esquire (hereinafter, Respondent or Brown). Petitioner charged that Respondent’s conduct, arising from his defective representation of four separate clients, violated the ³⁰⁶ following Maryland Lawyers’ Rules of Professional Conduct (MLRPC): 1.1 (“Competence”) 2 ; 1.2(a) (“Scope of Representation and Allocation of Authority Between Client and Lawyer”) 3 ; 1.3 (“Diligence”) 4 ; 1.4(a) and (b) (“Communication”) 5 ; 1.6(a) (“Confidentiality of Information”) 6 ; 1.16(d) (“Declining or Terminating Representation”) 7 ; 3.2 (“Expediting Litiga ³⁰⁷ tion”) 8 ; 8.1(a) and (b) (“Admission and Disciplinary Matters”) 9 ; and, 8.4(c) and (d) (“Misconduct”). 10 Pursuant to Maryland Rules 16-752(a) 11 and 16-757(c), 12 we designated the Honorable Patrick Cavanaugh of the Circuit Court for Baltimore County to conduct a hearing and file written findings of fact and conclusions of law. ³⁰⁸ Judge Cavanaugh conducted the hearing on 26-29 September 2011. He concluded, by clear and convincing evidence, that Respondent violated each MLRPC charged by Petitioner, except MLRPC 1.6(a) and MLRPC 8.1(a). Petitioner did not file with this Court any exceptions to Judge Cavanaugh’s written findings of fact and conclusions of law, recommending that we disbar Respondent.

Although Respondent failed to file with us either exceptions or a recommendation for appropriate sanction, he filed a post-hearing motion with Judge Cavanaugh and also with this Court. For reasons to be explained infra, these motions were either untimely or filed in the wrong venue. Therefore, we shall not treat either of Respondent’s motions as exceptions, pursuant to Maryland Rule 16 — 758(b) and (c). 13 I. FINDINGS OF FACT AND CONCLUSIONS OF LAW A. Complaint of William Wallace/Action Business Systems, Inc. In 2003, Respondent filed in the Circuit Court for Baltimore County a lawsuit on behalf of Action Business Systems, Inc. (ABS). The defendant removed the action to the United States District Court for the District of Maryland.

In the federal court, the defendant filed a third-party complaint against William Wallace, president and primary shareholder of ABS. On 26 April 2005, the defendant served upon Respondent interrogatories, a request for production of documents, and a notice of deposition of Wallace. Respondent failed to respond to the defendant’s discovery requests. As a result, on 18 October 2005, the federal court issued a memorandum opinion and order, granting the defendant’s motion for sanc ³⁰⁹ tions and entering a default judgment against ABS on each of the defendant’s claims.

Respondent filed a motion to reconsider the discovery sanctions. In his motion, Brown admitted to his failure to respond to the defendant’s discovery requests, blaming “a series of physical illnesses and non-physical setbacks” that caused him to “miss large amounts of time from [his] office.” The court denied his motion because it was filed untimely. As the case unraveled, Respondent failed to advise Wallace about the status of the matter. Wallace learned for the first time of Respondent’s neglect in January 2006, when the federal court entered an order of judgment, in excess of one million dollars, against Wallace and ABS.

In addition to offering up physical illness as an excuse for his dilatory conduct in the Wallace/ABS matter, Respondent explained to Judge Cavanaugh that the “deaths of people close to [him]” impaired his representation. Respondent did not substantiate or provide corroborating evidence of these claimed deaths or setbacks, explaining merely during oral argument before this Court that he “lost five people close to [him] within about a seven-month period.” 14 On 18 October 2005, Judge Nickerson, who presided over the ABS/Wallace case in the federal court, alerted Petitioner to Respondent’s problematic representation of Wallace and ABS. As a result of this complaint, Petitioner and Respondent entered into a conditional diversion agreement, pursuant to Maryland Rule 16-736(a). 15 In the agreement, Respondent ³¹⁰ admitted to professional misconduct during his representation of Wallace/ABS. On 28 April 2008, Petitioner received a letter from U.S. Magistrate Judge Susan K. Gauvey reproaching Respondent’s conduct in a different matter.

Petitioner and Respondent entered temporarily another conditional diversion agreement. Shortly thereafter, a number of Respondent’s former clients contacted Petitioner with additional, separate complaints about Respondent (discussed infra). Respondent failed to respond to Petitioner’s requests for information about his representation of those clients. As a result, Petitioner revoked the conditional diversion agreements. 16 Judge Cavanaugh rendered the following conclusions of law regarding Respondent’s representation of Wallace/ABS.

Re ³¹¹ spondent failed to act with reasonable diligence and promptness in providing legal services, violating MLRPC 1.3. Respondent failed to keep Wallace apprised sufficiently of the status of his case, violating MLRPC 1.4(a) and (b). Respondent failed to make reasonable efforts to expedite litigation, consistent with the interests of Wallace/ABS, which violated MLRPC 3.2. Respondent failed to respond to inquiries from Petitioner for information about his representation of Wallace/ABS, violating MLRPC 8.1(b).

Finally, the totality of Respondent’s conduct amounted to conduct prejudicial to the administration of justice, within the meaning of MLRPC 8.4(d). B. Complaint of Raymond J. Sweitzer On 26 March 2000, Raymond J. Sweitzer suffered injuries in an automobile accident. He engaged Respondent to pursue a personal injury claim. Approximately three years later, Respondent asserted that claim in a lawsuit filed in the District Court of Maryland, sitting in Anne Arundel County.

Respondent did not prosecute the case, however. He failed to serve any discovery requests upon the defendant and failed to respond timely to the defendant’s discovery requests. Because of Respondent’s lack of response, the defendant moved for, and the trial court granted, sanctions against Sweitzer. Respondent did not inform Sweitzer of the defendant’s discovery requests, Respondent’s failure to respond to them, or the sanctions.

Sweitzer was involved in a second, more serious accident on 25 January 2005. He engaged Respondent again to represent him. Respondent still had not informed Sweitzer about the discovery failure and sanctions in the earlier case. Instead, Respondent advised Sweitzer to dismiss voluntarily the prior case for pretextual reasons.

Sweitzer agreed, and Respondent dismissed the case on 21 June 2005. On 3 October 2007, Respondent filed a complaint regarding the second accident. Sweitzer struggled repeatedly to reach Respondent to learn about the progress of the second lawsuit. Respondent failed to return most of Sweitzer’s telephone calls ³¹² and cancelled scheduled meetings with Sweitzer.

Frustrated, Sweitzer consulted with another attorney and terminated Respondent’s engagement. Sweitzer re-engaged Respondent, however, after Respondent agreed to communicate more regularly with him. Ultimately, Sweitzer terminated Respondent’s engagement when communication did not improve. He requested repeatedly that Respondent send to him a copy of his file, but Respondent failed to do so.

Judge Cavanaugh offered the following conclusions of law regarding Respondent’s representation of Sweitzer. Respondent failed to communicate and consult with Sweitzer about the objectives of Sweitzer’s second case, violating MLRPC 1.2(a) and MLRPC 1.4(a). Respondent failed to represent Sweitzer with reasonable diligence and promptness in both cases, which violated MLRPC 1.3. Respondent failed to supply to Sweitzer a copy of his case file(s), violating MLRPC 1.16(d).

Finally, the totality of Respondent’s conduct amounted to conduct prejudicial to the administration of justice, within the meaning of MLRPC 8.4(d). C. Complaint of Linda Cartzendafner In May 2002, Linda Cartzendafner engaged Respondent to pursue a medical malpractice claim arising from the death of her husband. Cartzendafner gave to Respondent all of the medical documents in her possession relating to her husband’s death. On 9 May 2003, Brown filed a complaint with the Health Claims Arbitration Office (HCAO).

He amended the complaint twice to add additional parties. On 5 November 2003, Respondent filed a Certificate of Merit with the HCAO. Based on Respondent’s failure to move along the complaint for nearly three years thereafter, the HCAO issued a notice of contemplated dismissal of Cartzendafner’s claim. Brown failed to respond to the notice.

The HCAO dismissed Cartzendafner’s claim on 20 June 2006. Cartzendafner and Respondent had little-to-no contact thereafter, until a meeting that occurred approximately two years after the dismissal of the complaint. At that meeting, Respondent misrepresented to Cartzendafner that her claim ³¹³ was pending in arbitration. Although Respondent told Cartzendafner that the expert witness withdrew his certificate of merit for the malpractice claim, he did not tell her that the HCAO dismissed the case.

Thereafter, Respondent stopped communicating entirely with Cartzendafner, despite her continued requests for information. Frustrated, Cartzendafner retained new counsel in January 2009. She learned for the first time from her new attorney that the HCAO dismissed her claim due to a lack of prosecution. She learned also from the attorney that the statute of limitations had expired on the claim.

Cartzendafner sent Respondent a letter terminating his representation and requesting a copy of her file. Respondent failed to respond to the letter. Judge Cavanaugh made the following conclusions of law regarding Brown’s representation of Cartzendafner. Respondent failed to consult with Cartzendafner about the means of achieving her objectives, violating MLRPC 1.2(a).

Respondent failed to represent Cartzendafner with reasonable diligence and promptness, thus violating MLRPC 1.3. Cartzendafner requested a copy of her case file at the end of the representation, but Respondent failed to produce it, violating MLRPC 1.16(d). Respondent misrepresented to Cartzendafner that her claim was pending in arbitration, violating MLRPC 8.4(c). Finally, the totality of Brown’s conduct amounted to conduct prejudicial to the administration of justice, within the meaning of MLRPC 8.4(d).

D. Complaint of Gustave Mark Phoebus In May 2004, Gustave Mark Phoebus engaged Respondent, on a contingency-fee basis, to prosecute a medical malpractice claim. Respondent filed two complaints with the HCAO, one on 3 May 2004 against Friends Medical Center, Inc. (FMC) and the other on 13 December 2004 against the University of Maryland Medical Systems (UMMS). In December 2005, the HCAO dismissed for lack of prosecution the claim against FMC. During a meeting between the ³¹⁴ two in 2006, Respondent failed to inform Phoebus of the dismissal.

Instead, he advised Phoebus to dismiss voluntarily the claim because the expert witness withdrew his certification of merit for the claim. Phoebus agreed to dismiss the complaint against FMC. On 16 October 2006, the HCAO dismissed Phoebus’s remaining claim against UMMS due to lack of prosecution. Respondent revived the claim by filing a motion to defer entry; however, the HCAO dismissed the case again on 27 November 2007 for lack of prosecution because no further progress was made.

Respondent failed to inform Phoebus that the HCAO dismissed his claim against UMMS. The statute of limitations on both claims expired prior to being dismissed by the HCAO. On 22 September 2009, Phoebus submitted to Respondent a written list of questions concerning his medical malpractice claims and asked to be provided with copies of the complaints filed with the HCAO. Brown failed to respond, prompting Phoebus to terminate him in January 2010 and to request a copy of the case file(s) from Respondent.

Respondent failed to send Phoebus a copy of the file(s). Additionally, Brown failed to respond to Petitioner’s request for information about his representation of Phoebus. Judge Cavanaugh made the following conclusions of law regarding Respondent’s representation of Phoebus. Respondent failed to represent his client with reasonable competency, diligence, and promptness, which violated MLRPC 1.1 and MLRPC 1.3.

Respondent’s advice to dismiss voluntarily the claim against FMC, after the HCAO dismissed already the claim for lack of prosecution, violated MLRPC 1.2(a), MLRPC 1.4(a), and MLRPC 1.4(b). Respondent’s failure to honor Phoebus’s request for a copy of his case file(s) at the end of the representation violated MLRPC 1.16(d). Respondent failed to respond to Petitioner’s demands for information, violating MLRPC 8.1(b). Respondent misrepresented to Phoebus that his claim was pending before the HCAO, which violated MLRPC 8.4(c).

Finally, the totality of Respondent’s ³¹⁵ conduct amounted to conduct prejudicial to the administration of justice, within the meaning of MLRPC 8.4(d).

II

STANDARD OF REVIEW The standard of review for attorney disciplinary proceedings is well established and may be re-stated succinctly for present purposes: This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland. In our independent review of the record, we accept the hearing judge’s findings of fact as prima facie correct unless shown to be clearly erroneous. 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. We review the hearing judge’s conclusions of law [without deference].

Atty. Griev. Comm’n v. Stern, 419 Md. 525, 556-57 , 19 A.3d 904, 925 (2011) (internal citations omitted).

III

ANALYSIS Neither party filed exceptions to the hearing judge’s findings of fact and conclusions of law. Whether certain motions filed by Respondent in the Circuit Court and with us should be construed as the equivalent of exceptions requires some comment. Brown filed a motion with the Circuit Court, titled “Respondent’s Motion for New Trial,” and a motion with this Court, titled “Respondent’s Motion to Dismiss or, in the Alternative, to Remand.” Neither of these motions were appropriate or filed properly. As elaborated infra, we shall not recognize either as exceptions within the meaning of Maryland Rule 16-758(b) and (c).

Having original and complete jurisdiction over attorney discipline proceedings in Maryland, this Court is the sole body with authority to grant a remand or a new hearing. Such requests are included ordinarily in exceptions filed with the Court. See Atty. Griev.

Comm’n v. James, 385 Md. 637, 646 , 870 A.2d 229, 234 (2005) (addressing Respondent’s motion ³¹⁶ to remand that was included in Respondent’s exceptions); Atty. Griev. Comm’n v. Muhammad, 395 Md. 676, 690 n. 13, 912 A.2d 588 , 596 n. 13 (2006) (denying an attorney’s motion to remand in a post-hearing memorandum because attorney “ ‘had ample notice of the fact that the Findings of Fact and Conclusions of Law were filed and many opportunities to review same’ ” (quoting Bar Counsel’s oppositional motion)); Atty. Griev.

Comm’n v. Blum, 373 Md. 275, 293-94 , 818 A.2d 219, 230-31 (2003) (addressing Respondent’s motion for new hearing that was included in Respondent’s exceptions). Respondent filed his “Motion for New Trial” in the Circuit Court on either 1 December 2011 or 5 December 2011. 17 , 18 Regardless of when Respondent filed the motion, this Court alone has the authority to order a remand or a new hearing, not the hearing judge. Therefore, Respondent’s “Motion for New Trial” was filed with and directed to Judge Cavanaugh improperly. 19 ³¹⁷ Regarding the “Motion to Dismiss” filed in this Court, Respondent filed it untimely. Rule 16 — 758(b) and (c) provide: (b) Exceptions; recommendations.

Within 15 days after service of the notice required by section (a) of this Rule [which is irrelevant within the context of this analysis], each party may file (1) exceptions to the findings and conclusions of the hearing judge and (2) recommendations concerning the appropriate disposition under Rule 16-759(c). (c) Response. Within 15 days after service of exceptions or recommendations, the adverse party may file a response. Petitioner filed its recommendations for sanction on 22 December 2011.

Pursuant to Rule l-203(a), 20 the last day that ³¹⁸ Respondent could file timely exceptions was 6 January 2012. Respondent filed his “Motion to Dismiss” on 6 February 2012. Therefore, we shall not consider Respondent’s motion to dismiss for what it purports to be or as exceptions. 21 When an attorney who is the subject of a disciplinary proceeding is given due notice and the opportunity to defend in a fair hearing, the attorney “has exhausted his entitlement to further judicial proceedings.” Atty. Griev.

Comm’n v. McLaughlin, 372 Md. 467, 494 , 813 A.2d 1145, 1161 (2002) (citing Atty. Griev. Comm’n v. Harris, 366 Md. 376, 391 , 784 A.2d 516, 525 (2001)). Respondent failed to provide us with a scintilla of evidence suggesting an unfair hearing.

In the absence of exceptions to the hearing judge’s findings of fact, we shall accept them as established. See, e.g., Atty. Griev. Comm’n v. Brady, 422 Md. 441, 458 , 30 A.3d 902, 911 (2011).

Therefore, we shall review, without deference, his conclusions of law, and, if we agree with them, determine the ³¹⁹ appropriate sanction. Md. Rule 16 — 759(b). 22 A. MLRPC 1.1: Competence Generally, this Court will find a violation of MLRPC 1.1 if an attorney fails to act or acts in an untimely manner, resulting in harm to his or her client. For instance, in Attorney Grievance Commission v. Bleecker, we concluded that an attorney violated MLRPC 1.1 by filing a suit after the applicable statute of limitations expired. 414 Md. 147, 171-72 , 994 A.2d 928, 942-43 (2010). In Attorney Grievance Commission v. Kwarteng, an attorney’s failure to prepare interrogatories directed to the other side, to respond to the other side’s interrogatories, and to preserve a client’s right to appeal violated MLRPC 1.1. 411 Md. 652, 658 , 984 A.2d 865, 868 (2009).

Respondent’s failure to pursue Phoebus’s and Cartzendafner’s claims in a timely manner caused the statute of limitations for their claims to expire by the time the HCAO dismissed their claims. Their claims were dismissed because Respondent failed to prosecute them. Further, Brown failed to answer discovery requests in the cases of Sweitzer and Wallace/ABS. Respondent’s dilatory representation stripped Cartzendafner and Phoebus of their opportunity to pursue their claims and prejudiced Wallace/ABS and Sweitzer by precipitating discovery sanctions against them.

Respondent’s conduct violated MLRPC 1.1. B. MLRPC 1.2(a): Scope of Representation and Allocation of Authority Between Client and Lawyer In Attorney Grievance Commission v. Reinhardt, the errant attorney ignored client requests for updates about the ³²⁰ client’s case or for a copy of their case files, and failed to prosecute a client’s case after filing a complaint. 391 Md. 209, 218 , 892 A.2d 533, 538 (2008). We concluded that this violated MLRPC 1.2(a). Reinhardt, 391 Md. at 218 , 892 A.2d at 538 ; see also Atty.

Griev. Comm’n v. Angst, 369 Md. 404, 409-10 , 800 A.2d 747, 750-51 (2002) (concluding that an attorney’s failure to file a quit claim deed and return client telephone calls amounted to a violation of MLRPC 1.2(a)). Brown’s conduct here mirrors closely the misconduct in Reinhardt. Cartzendafner’s and Phoebus’s cases were dismissed for lack of prosecution due to Respondent’s inaction.

Respondent failed subsequently to inform either client of the dismissals and ignored the clients’ repeated requests for information. Respondent failed similarly in Sweitzer’s case to pursue the claim or to inform Sweitzer about the imposition of discovery sanctions imposed due to Respondent’s inaction. Respondent’s conduct violated MLRPC 1.2(a). C. MLRPC 1.3: Diligence Brown’s conduct violated MLRPC 1.3 in three ways.

First, a lawyer who causes discovery sanctions to be imposed against his/her client due to his/her failure to answer discovery requests violates MLRPC 1.3, even if the sanction is lifted later. Atty. Griev. Comm’n v. Culver, 381 Md. 241, 276 , 849 A.2d 423, 444 (2004); see also Atty.

Griev. Comm’n v. Gisriel, 409 Md. 331, 370-71 , 974 A.2d 331, 354 (2009) (stating that a lawyer’s failure to respond to motions amounted to violation of MLRPC 1.3). In the cases of Wallace/ABS and Sweitzer, Brown’s lack of diligence and promptness in answering the opposing parties’ discovery requests caused the judge in each case to issue sanctions against Brown’s clients. Second, an attorney violates MLRPC 1.3 when he/she fails to pursue his/her client’s case by not prosecuting the claim after filing the complaint.

In Attorney Grievance Commission v. McCulloch, an attorney filed a complaint, but failed to secure service of process on the defendant or to respond to a notice from the court of contemplated dismissal for failure to prosecute the case. 404 Md. 388, 398 , 946 A.2d 1009 , 1015 ³²¹ (2008). We concluded that the attorney violated MLRPC 1.3. McCulloch, 404 Md. at 398 , 946 A.2d at 1015 ; see also Atty. Griev.

Comm’n v. Patterson, 421 Md. 708, 737 , 28 A.3d 1196, 1213 (2011) (stating that lawyer’s failure to pursue a claim after filing a complaint demonstrated “incompetence and insufficient diligence in the matter,” a violation of MLRPC 1.3). In the cases of Cartzendafner and Phoebus, the HCAO dismissed both cases due to lack of prosecution and Respondent’s failure to respond to motions to dismiss, despite the clients’ expectations that Respondent would pursue their claims. Finally, a lawyer may violate MLRPC 1.3 if the lawyer fails to protect against expiration of the statute of limitations regarding his/her client’s claim. See Bleecker, 414 Md. at 170-71 , 994 A.2d at 942 .

Here, the HCAO dismissed Phoebus’s and Cartzendafner’s claims due to Respondent’s laggard representation. Prior to dismissal, the applicable statute of limitations expired on those claims. The clients were left without recourse after the HCAO dismissed the claims. Brown was aware expressly of the impending statute of limitations deadlines in both cases, heightening his culpability.

(“When [Phoebus] came to me there was not all that much time left before we needed to file to protect the statute of limitations,” and “I would have to drop everything I was doing because the limitations [in Cartzendafner’s case] was coming up to file suit....”) For these reasons, Respondent violated MLRPC 1.3. D. MLRPC 1.4(a) and (b): Communication Respondent violated MLRPC 1.4(a) during his representation of Wallaee/ABS, Sweitzer, and Phoebus. In McCulloch, we concluded that an attorney violated this rule when she failed to communicate with her client, including not advising her client about the status of efforts to serve the defendant and to respond to the opponent’s motion to dismiss. 404 Md. at 398 , 946 A.2d at 1015 . Respondent failed similarly to keep his clients informed.

He failed to tell Wallace/ABS and Sweitzer about the discovery sanctions against them, failed to ³²² notify Phoebus that his claims had been dismissed for lack of prosecution, and failed to respond to Sweitzer’s and Phoebus’s numerous case-status requests. Respondent’s conduct violated MLRPC 1.4(a). We agree with Judge Cavanaugh that Respondent violated also MLRPC 1.4(b) during his representation of Wallace/ABS and Phoebus. A lawyer’s failure to inform his or her clients about a pending or granted motion to dismiss violates MLRPC 1.4(b).

Atty. Griev. Comm’n v. Hodgson, 396 Md. 1, 6 , 912 A.2d 640, 643-44 (2006); Atty. Griev.

Comm’n v. Harris, 371 Md. 510, 522 , 810 A.2d 457, 464 (2002). Here, Respondent did not advise Phoebus about the notice of contemplated dismissal issued in his claim. Similarly, he did not advise Wallace/ABS of the discovery sanctions and motion for default judgment against him. Brown’s failure to discuss with his clients the negative developments in their respective cases prevented them from making informed decisions about their cases.

E. MLRPC 1.16(d): Declining or Terminating Representation When a client requests his or her file from an attorney at the end of the representation, MLRPC 1.16(d) requires the attorney to surrender the portions of the file (or a copy) to which the client is entitled (assuming no proper charging lien exists). Atty. Griev. Comm’n v. Edib, 415 Md. 696, 715-17 , 4 A.3d 957, 969-70 (2010); Atty.

Griev. Comm’n v. De La Paz, 418 Md. 534, 554 , 16 A.3d 181, 193-94 (2011) (citing McCulloch, 404 Md. at 399 , 946 A.2d at 1016 ). Here, Sweitzer, Cartzendafner, and Phoebus requested their case files after ending their engagements with Respondent. He failed to comply with their requests, thereby violating MLRPC