Attorney Grievance Commission v. Cassidy

RAKER, J. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against John Walsh Cassidy, Respondent, alleging violations of the Maryland Rules of Professional Conduct. The Commis ⁶⁹¹ sion charged Respondent with violating Rules 1.1 (Competence), 1 1.3 (Diligence), 2 and 1.4 (Communication). 3 We referred the matter, pursuant to Maryland Rule 16-709(b), to Judge Ronald D. Schiff of the Circuit Court for Prince George’s County to make findings of fact and proposed conclusions of law. Following an evidentiary hearing, Judge Schiff concluded that Respondent violated Rules 1.3 and 1.4., but that Respondent did not violate Rule 1.1. Respondent filed an exception to Judge Schiff s conclusion that Respondent violated Rule 1.4.

Bar Counsel took no exceptions to the findings or conclusions of the hearing judge. I. Judge Schiff held an evidentiary hearing and filed a report setting out his findings and conclusions. We set forth his report. FINDINGS OF FACT AND CONCLUSIONS OF LAW “This case comes to the Circuit Court for Prince George’s County, Maryland by Order of the Court of Appeals of Maryland dated May 2, 2000.

The Court of Appeals instructed this Court to make appropriate findings as to whether Respondent, John Walsh Cassidy, violated the Maryland Rules of Professional Conduct. ⁶⁹² “Petitioner, Attorney Grievance Commission of Maryland (“Commission”), filed a Petition for Disciplinary Action against Respondent on May 1, 2000. The Commission alleges that Respondent violated Rules 1.1, 1.3 and 1.4 of the Maryland Rules of Professional Conduct. The Commission filed a Request for Admission of Facts and Genuineness of Documents. The enumerated facts, documents and attachments thereto were admitted without objection at the hearing on this matter.

STANDARDS OF PROOF “For disciplinary action to ensue, the burden of proof is on the Commission to establish Rules violations by clear and convincing evidence. See Attorney Griev. Comm’n v. Kemp, 335 Md. 1, 9, 641 A.2d 510, 514 (1994). Furthermore, an attorney in a disciplinary proceeding need only establish factual matters supporting the attorney’s defense by a preponderance of the evidence.

See Attorney Griev. Comm’n v. Powell, 328 Md. 276, 288 , 614 A.2d 102, 108 (1992). After a hearing held on July 13, 2000, this Court makes Findings of Fact and Conclusions of Law as set forth below. FINDINGS OF FACT “1.

Respondent was admitted to the Bar of the Court of Appeals of Maryland on June 27, 1968. Respondent has carried on a law practice specializing in real estate matters. “2. On or about April 29, 1998, Denise Glenn orally retained Respondent for the purpose of drafting and recording a new deed to her condominium. The new deed was to include a change in Mrs. Glenn’s name of record from Denise Wilson to Denise Glenn.

Respondent was also instructed to add Mrs. Glenn’s husband, Walter Glenn, as a co-owner. “3. Respondent quoted a fee of $100.00. The fee represented $75.00 to prepare the deed and $25.00 to record it. ⁶⁹³ “4. Respondent stated that the deed would be ready in approximately three weeks. “5.

Thereafter, Respondent marked up the deed and gave it to his secretary, Jeanette Rogers, to process according to his usual practice with respect to deeds. “6. In or about July 1998, Mrs. Glenn telephoned Respondent’s office inquiring as to the status of her deed. This was the first contact since the original meeting between Respondent and Mrs. Glenn on April 29, 1998. The individual with whom Mrs. Glenn spoke indicated that Mrs. Glenn must provide an additional $25.00 for a notary fee. ■ Mrs. Glenn indicated that an additional fee was not discussed during the original meeting.

Mrs. Glenn then asked that Respondent call her. “7. Between June 1998 and December 1998 Mrs. Glenn placed several calls to Respondent’s office but was never able to speak to him. “8. In October 1998, Jeanette Rogers quit her job. Respondent was financially unable to immediately replace her. “9.

On November 4,1998, Respondent was suspended from the practice of law for 18 months on an unrelated matter. “10. On December 4, 1998, Mrs. Glenn, accompanied by her husband, Walter Glenn, visited Respondent’s office inquiring about the status of the deed. Respondent explained to Mr. and Mrs. Glenn that he was unable to locate the deed. Respondent searched for the deed while Mr. and Mrs. Glenn were in the office but was unable to find it.

He indicated that he would continue to search for the deed and would contact the Glenns in a short period of time. During this visit Respondent never disclosed his suspension from the practice of law. “11. On January 4, 1999, Mrs. Glenn telephoned Respondent’s office once again, inquiring about the status of the deed. The person with whom she spoke (not Respondent) hung up on her without giving any information.

On January 8, 1999, Mrs. Glenn filed a complaint with the Attorney Grievance Commission. ⁶⁹⁴ “12. In February 1999, Mr. Glenn visited Respondent’s office. Respondent indicated that he had not found the deed, and issued a $100.00 refund to Mr. Glenn. On April 3, 1999, Respondent forwarded an additional $200.00 to Mrs. Glenn. “13.

Following Respondent’s April 3, 1999 reply to the Attorney Grievance complaint, Respondent found the marked-up deed tacked to a bulletin board, which was near Jeanette Rogers’ desk, under a number of other papers. “14. At no time during the representation did Respondent inform Mr. or Mrs. Glenn that he was suspended from the practice of law. “15. With respect to other pertinent matters this Court also finds the following: “(a) Respondent relied almost exclusively on his secretary to draft deeds and he did not employ any type of meaningful tickler system that would alert him to overdue matters. “(b) With respect to the preparation of deeds Respondent turned over marked-up deeds to his secretary who would place them in a miscellaneous “ABC” file. This file was maintained alphabetically by case name, and was kept as an open file on or near the secretary’s desk.

The file included various types of matters, such as deeds and settlement papers. Respondent performed minimal monitoring of this file but remained available should the secretary have questions about the cases. “(c) Respondent admits that he would not have known about the Glenns’ lost deed had the Glenns not brought the matter to his attention. “(d) Jeanette Rogers worked for the Crossroads Title Company who shared office space with Respondent. Jeanette Rogers, however, performed secretarial duties for Respondent. Ms. Rogers performed secretarial duties for Respondent for approximately three years. ⁶⁹⁵ CONCLUSIONS OF LAW “I. Rule 1.1 — Competence Rule 1.1 of the Maryland Rules of Professional Conduct provides the following: A lawyer shall provide competent representation to a client.

Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. “Petitioner relies on Attorney Grievance v. Ober, 350 Md. 616 , 714 A.2d 856 (1998), as support for its assertion that Respondent violated Rule 1.1 in connection with the loss of Mrs. Glenn’s deed. In Ober , the Court of Appeals found that respondent violated Rule 1.1 by losing a client’s file and failing to reconstruct it in a timely manner. See id., 350 Md. at 630 , 714 A.2d at 863 . The Court reasoned that “the thoroughness and preparation reasonably necessary for competent representation includes the proper management of case files.” Id.

Furthermore, “[t]he loss of a file may substantially affect an attorney’s ability to adequately prepare the client’s case.” Id. “Undoubtedly, the ability for an attorney to manage case files and implement procedures for reconstructing lost or incomplete files reflects upon the competence of the attorney. In Ober , however, the Court was clear that the basis for the Rule 1.1 violation was not “solely on [r]espondent’s loss of the file.” Id. Thus, it was the loss of the file coupled with respondent’s failure to promptly reconstruct it that gave rise to a finding of lack of competence. Indeed, in Ober the respondent lost his client’s file sometime after leaving his private practice in July 1994.

After several requests from his former client and her new attorney, respondent finally reconstructed the file and handed it to his former client on November 18, 1996. See id., 350 Md. at 623-24 , 714 A.2d at 860 . The implication is that inherent in the notion of competence is the ability to timely address and remedy prior mistakes. ⁶⁹⁶ “In the instant matter, Respondent, a specialist in real estate matters, clearly lost Mrs. Glenn’s deed. Furthermore, complete delegation of an administrative matter to his secretary is no excuse for such loss.

The nature of the item lost, however, and the impossibility of reconstructing the document distinguishes the instant matter from the circumstances in Ober . Accordingly, this Court finds that the loss of Mrs. Glenn’s deed, while irresponsible in itself, does not rise to the level of incompetence contemplated by the Rules of Professional Conduct. “II. Rule 1.3 — Diligence Rule 1.3 of the Maryland Rules of Professional Conduct provides the following: A lawyer shall act with reasonable diligence and promptness in representing a client. “Respondent was retained to complete a relatively simple legal task. He was asked to merely prepare a deed by changing an existing owner’s name and adding another name as co-owner.

Respondent represented that he would complete the task in three weeks. Respondent never completed the task. In fact, Respondent admitted that he would not have known that the task was incomplete had the Glenns not brought the matter to his attention. As such, Respondent clearly has an obligation to maintain a tickler system for all open files including those relatively minor matters, such as preparing a deed, which are the most likely to be forgotten or misplaced.

This is especially true for a real estate practice where the volume of paper is substantial. “Furthermore, Respondent was retained in late April 1998 and had approximately six months up until the time of his suspension in November 1998 to complete this simple legal task. Thus, the fact that Respondent was suspended from the practice of law is of no significance as to his ability , to complete and execute the deed. In light of the aforementioned facts, this Court finds .that Respondent violated Rule 1.3 in his representation of Mr. and Mrs. Glenn. ⁶⁹⁷ “HI. Rule 1.4 — Communication Rule 1.4 of the Maryland Rules of