Attorney Grievance Commission v. De La Paz

ADKINS, J. Petitioner Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed two Petitions for Disciplinary or Remedial Action (collectively “the Petitions”) against Respondent Andrew Gregory De La Paz. In August 2009, Bar Counsel charged De La Paz with violating the Maryland Rules of Professional Conduct (“MRPC”) in his capacity as representative of Angelo Callaham. Specifically, Bar Counsel alleged that De La Paz violated the following rules: (1) Rule 1.1 (Competence); 1 (2) Rule 1.3 (Diligence); 2 (3) Rule 1.4 (Communication); 3 (4) Rule 1.5(a) (Fees); 4 (5) ⁵⁴¹ Rule 1.16(d) (Declining or Terminating Representation); 5 and (6) Rule 8.4(d) (Misconduct). 6 Later, in December 2009, Bar ⁵⁴² Counsel produced another list of charges against De La Paz. In connection with his representation of Danny Simons, De La Paz was charged with violating (1) Rule 1.1 (Competence); (2) Rule 1.3 (Diligence); (3) Rule 1.4 (Communication); (4) Rule 1.16(d) (Declining or Terminating Representation); (5) Rule 8.1(b) (Bar Admission and Disciplinary Matters); 7 and (6) Rule 8.4(d) (Misconduct).

The two sets of charges resulted in two different hearings at the Circuit Court for Prince George’s County. In both cases, De La Paz failed to file an answer to Bar Counsel’s Petitions or respond to its Requests for Admissions of Facts and Genuineness of Documents; thus, the factual averments in those Petitions were deemed admitted, in accordance with Md. Rules 2-323(e), 2-613, and 16-754(c). Moreover, De La Paz failed to move to vacate the default orders entered by the hearing judge or to attend the hearings. Regarding Bar Counsel’s August 2009 charges (hereinafter referred to as “AG 50”), the hearing judge issued Findings of Facts and Conclusions of Law, in which he found by clear and convincing evidence that De La Paz violated MRPC Rules 1.1, 1.3, 1.4, 1.5, 1.16(d), and 8.4(d).

In a later hearing regarding the December 2009 charges (hereinafter referred to as “AG 65”), the same hearing judge found by clear and convincing evidence that De La Paz violated MRPC Rules 1.1, 1.3, 1.4, 1.16(d), 8.1(b), 8.4(d). Neither party filed exceptions to the ⁵⁴³ hearing judge’s findings of fact or conclusions of law. As a result, we accept the hearing judge’s findings of fact as established for the purpose of determining the proper sanction. See Md. Rule 16-759(b)(2)(A). 8 The AGC recommends disbarment for the protection of the public in the present case.

Based upon our de novo review of the record, we agree with the hearing judge’s conclusions, and hold that disbarment is the appropriate sanction for De La Paz’s violations of the Rules of Professional Conduct. THE HEARING COURT’S FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. AG 50 The AGC’s investigation of De La Paz was triggered by the complaint of Angelo Callaham, a defendant in a civil action who was solicited as a client by De La Paz. 9 The hearing judge made the following findings of fact by clear and convincing evidence: On or about November 2, 2007, Angelo Callaham was sued in the District Court of Maryland in Prince George’s County. About the same time, [Respondent solicited Mr. Callaham as a client and later agreed] to represent [him] in the lawsuit.

At the time of the engagement, Respondent advised Mr. Callaham that he would charge a flat fee of $1,000[.] Mr. Callaham paid the $1,000.00 fee in two installments of $500 each on November 28 and December 20, 2007. At the time of the engagement, Mr. Callaham had not yet ⁵⁴⁴ been served with the summons in the litigation, and Respondent advised Mr. Callaham to take no action at this time. At the time of the engagement, Respondent was employed with the Law Offices of Raymond Carignan, Chartered. Pursuant to the employment agreement between Respondent and Raymond Carignan, Respondent received $400.00 of the $1,000.00 fee and the Law Offices of Raymond Carignan, Chartered, maintained the balance.

In the first week of January 2008, Respondent resigned from the Law Offices of Raymond Carignan, Chartered, and began a solo practice in Bethesda, Maryland. During the period January through March 2008, Respondent spoke with Mr. Callaham, [Mr. Callaham’s] sister, or both on several occasions. During these communications, Respondent informed Mr. Callaham that the summons had not been served on either Mr. Callaham or the other defendant in the case, and that Respondent would let Mr. Callaham know when this occurred. Respondent did not enter his appearance in the pending litigation and made no effort to resolve the dispute which led to the litigation.

On or about April 2008, Respondent began working for a law firm in Baltimore County, Maryland. Respondent failed to notify Mr. Callaham that he had moved his practice and failed to provide sufficient information to Mr. Callaham to enable him to contact the Respondent. On or about July 2008, Mr. Callaham received a summons to appear in court[.] Following receipt of the summons, Mr. Callaham called and left messages for Respondent^ but] received no return calls from Respondent. On August 8, 2008, Mr. Callaham appeared pursuant to the summons in the District Court of Maryland for Prince George’s County, where Respondent failed to appear at the hearing.

On or about August 8, 2008, Mr. Callaham, without the aid of counsel, agreed to enter into a Consent Judgment. As a result of these actions, on or about August 13, 2008, Mr. Callaham filed a complaint against Respondent to [the AGC]. Mr. Callaham received a $600 refund from the Law ⁵⁴⁵ Offices of Raymond Carignan, Chartered. Initially, Respondent also agreed to return the $400 he received from the prepaid fee to Mr. Callaham[, with payments beginning on or about May 17, 2009.] Respondent failed to make any payments and ... the Conditional Diversion Agreement was [later] revoked by [the AGC] due to Respondent’s material default.

From these facts the hearing judge found, “by clear and convincing evidence,” that De La Paz violated all of the charged Rules. Specifically, he opined: A.MRPC 1.1 — Competence Here, Respondent was engaged to represent Mr. Calla-ham [and] paid in advance for his services. Respondent failed to apprise Mr. Callaham of the status of the case, despite Respondent’s assurances to do so. Respondent neither entered his appearance, contacted the opposing party for a possible resolution to the case, nor provided Mr. Callaham legal representation on August 8, 2008, for Mr. Callaham’s hearing.

Therefore, Respondent completely failed to act to protect the client’s interests in the lawsuit____ B.MRPC 1.3 — Diligence * * * Pursuant to the analysis above, Respondent’s failure to enter his appearance, failure to entertain potential resolution on behalf of his client, and failure to provide Mr. Callaham with legal representation the day of his hearing demonstrated a lack diligence, promptness, and overall competence in representation of his client____ C.MRPC 14 — Communication ⁵⁴⁶ Here, Respondent failed to communicate with his client from the date of engagement of representation in April 2008 until after Mr. Callaham’s hearing on August 8, 2008. Although Mr. Callaham made real efforts to contact Respondent by telephone prior to the hearing by leaving messages, his messages were not returned. His client was not kept advised concerning the status of the matter and Mr. Calla-ham’s reasonable requests for information were not promptly complied with by Respondent____Furthermore, Respondent failed to provide his client with legal advice to provide his client an opportunity to make informed decisions, either prior to, during or after ... August 8, 2008 hearing.

In fact, the client was not even kept informed concerning the location of Respondent’s office and how to contact him____ D.MRPC 1.5 — Fees * * * Respondent was paid in advance to represent Mr. Calla-ham in the District Court litigation. Here, Respondent utterly failed to provide the necessary services and never earned the fee. For this reason, the fee was unreasonable E.MRPC 1.16(d) — Declining or Terminating Representation The uncontested evidence established that, following the completion of the litigation and termination of the representation, Respondent failed to return to Mr. Callaham the unearned fee to which he was entitled to reimbursement. ... F.MRPC 8.1p(d) — Misconduct As indicated above, Respondent failed to provide competent and diligent representation, failed to keep the client ⁵⁴⁷ informed, charged an unreasonable and unearned fee and failed to return the unearned prepaid fee. [The] Respondent engaged in the type of conduct that reflected negatively on the legal profession and that he, thereby, engaged in conduct prejudicial to the administration of justice[.] (Case citations omitted). 2.

AG 65 In the second case, the AGC investigation had been triggered by the complaint of Danny Simons, a plaintiff whose personal injury suit was transferred from his original counsel to Respondent for litigation purposes. The same hearing judge made the following findings of fact by clear and convincing evidence: On or about April 12, 2004, Danny L. Simons ... was injured in an automobile accident. Shortly after the accident, [Simons] engaged the firm of Paul Klein & Associates, P.C. On or about February 16, 2005, Mr. Klein notified [Simons] that his file was going to be transferred to Respondent for litigation, [and Simons did not object.] On or about February 18, 2005 [Simons] signed a fee sharing disclosure statement representing that: (1) Respondent was not an employee of Paul Klein & Associates, P.C.; (2) would not be supervised by Mr. Klein; and (3) that [Simons] consented to a fee sharing arrangement between Mr. Klein and Respondent. On or about March 31, 2005, Respondent filed a complaint in the District Court of Maryland for Prince George’s County on behalf of [Simons].

Prior to filing the complaint, Respondent did not inform [Simons] that the claim would be limited to [that court’s] $20,000 jurisdictional limit[.] Thereafter, Respondent failed to obtain service on the defendant. [Later], Respondent notified [Simons] that the named defendant had passed away. Respondent also informed [Simons] that he was in the process of determining whether an estate had been opened for the defendant, and that, if ⁵⁴⁸ not, additional steps would be required before his case could go forward. [ ] On or about December 20, 2005, Respondent wrote to [Simons] informing him that an estate had not been opened for the deceased defendant but that he would be opening an estate. Respondent indicated that as soon as the estate had been set up and a new trial date scheduled, he would contact [Simons]. [Three and a half months later, Simons left a phone message for Respondent.] In response, Respondent wrote to [Simons] and advised him that he was still in the process of opening the defendant’s estate in order to proceed with the litigation. Respondent promised to contact [Simons] as soon as a new trial date was obtained.

On or about April 16, 2007, Respondent wrote to [Simons] and informed him that he would be opening the estate by the end of May 2007, so that his case could proceed. Respondent failed to ever open the estate. [Six months after Respondent’s second letter,] the District Court dismissed the complaint for failure to prosecute. Respondent failed to inform [Simons] that his case had been dismissed. [Instead, Simons] found out about the dismissal by going to the Courthouse and inquiring. On or about January 13, 2009, Respondent represented [Simons] in a criminal matter[.] At that time, [Simons] demanded to know what had happened to his civil case.

Respondent told him that he would be in contact with him as soon as he established himself in a new law office. Following the conversation of January 13, 2009, Respondent failed to provide [Simons] with contact information, such as a phone number or an address where he could be reached. From January 13, 2009 through April 13, 2009, Respondent did not communicate with [Simons]. On or about April 13, 2009, [Simons] wrote to Respondent by Certified Mail[, but the letter] was returned by the Postal Service.

The same letter was mailed again with ⁵⁴⁹ confirmation of delivery on May 13, 2009. Respondent did not respond to the [Simon’s May 13] letter[.] On or about June 26, 2009, [the AGC] received a complaint against Respondent from [Simons’s] new attorney. On or about July 8, 2009, [the AGC] sent Respondent a letter notifying him of the complaint and requesting a written response thereto within 15 days of July 8, 2009. Respondent failed to provide a response to this letter.

On July 29, 2009, Assistant Bar Counsel sent Respondent a second request for [an immediate] written response to the allegations in the complaint[, but once again, Respondent did not respond.] From the facts as found above, the hearing judge once again found, by clear and convincing evidence, that De La Paz had violated all of the charged rules. Specifically, he concluded: A MRPC 1.1 — Competence On or about December 20, 2005, Respondent determined a need to open an estate for the deceased defendant in order to proceed with Complainant’s action. A year passed without any activity taken on behalf of the case. As of April 16, 2007, [the] estate was never opened, and despite Respondent’s additional promise to Complainant to open the estate no later than the end of May 2007, Respondent failed to open the estate.

As reflected in the case’s docket entries, no activity occurred from April 24, 2006 through October 12, 2007, which was the date of the Request for Order of Dismissal. On October 19, 2007, the District Court complaint was dismissed for failure to prosecute pursuant [to] Md. Rule 3-507----Respondent filed a complaint on behalf of his client, but failed to open the estate, pursue the claim, and act in his client’s best interests. Thus, Respondent failed to demonstrate the requisite legal knowledge, skill, thoroughness, and preparation reasonably necessary for competent representation____ ⁵⁵⁰ B.MRPC 1.3 — Diligence Pursuant to the analysis above, Respondent’s failure to perform on behalf of his client and failure to protect his chent’s interests in his case demonstrated a lack of reasonable diligence, promptness, and overall competence in representation of his client.... C.MRPC 14 — Communication Here, Respondent failed to communicate with Complainant for extensive time periods, including a period of more than a year.

When Complainant’s case was dismissed for failure to prosecute, Respondent failed to communicate to Complainant the disposition of the case, any consequences as a result of the dismissal, and any potential limits on recovery. Furthermore, as of January 2009, Respondent failed to communicate to Complainant any address or contact number where the Respondent could be reached. Finally, Respondent failed to respond to letters written by Complainant regarding his case.... Respondent failed to keep his client informed about the status of his case to the extent reasonably necessary for Complainant to reach an informed decision.

D.MRPC 1.16(d) — Declining or Terminating Representation Here, Respondent, for all intents and purposes, abandoned his representation of Complainant with regard to the personal injury claim sometime in 2007 when Respondent failed to open the estate and act to prevent the dismissal of the complaint. Additionally, Respondent failed to inform Complainant or otherwise take steps reasonably practicable to protect his client’s interests, such as informing Complainant that he could not provide the necessary legal services ⁵⁵¹ required, returning his file, and allow Complainant an opportunity to obtain new counsel.... E. MRPC 8.1 (b) — Bar Admissions and Disciplinary Matters Here, evidence established that on June 26, 2009, [the AGC] received a complaint against Respondent from Complainant’s attorney. On July 8, 2009, [the AGC] sent Respondent a letter notifying him of the complaint and requesting a written response within 15 days of July 8, 2009.

Petitioner did not receive a response. On July 29, 2009, a second request for a written response to the complaint was sent. Again, [the AGC] did not receive a response. Both requests from [the AGC] were sent to Respondent’s last known address, and neither letter was returned by the United States Postal Service____Respondent received Bar Counsel’s letter in regard to the complaint and knowingly failed to respond thereto, in violation of MRPC 8.1(b).

F. MRPC 84(d) — Misconduct As indicated above, Respondent failed to provide competent and diligent representation, failed to keep the client informed, and failed to take steps reasonably practicable to protect his client’s interests.... Respondent engaged in the type of conduct that reflects negatively on the legal profession, and shows that Respondent engaged in conduct prejudicial to the administration of justice[.] (Case citations omitted). DISCUSSION Standard of Review “In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an indepen ⁵⁵² dent review of the record.” Attorney Grievance Comm’n v. Bleecker, 414 Md. 147, 167 , 994 A.2d 928, 940 (2010). Yet, [e]ven though conducting an independent review of the record, we accept the hearing judge’s findings of fact unless they are found to be clearly erroneous.

This Court gives deference to the hearing judge’s assessment of the credibility of witnesses. Factual findings by the hearing judge will not be interfered with if they are founded on clear and convincing