Attorney Grievance Commission v. Dietz

RODOWSKY, Judge. This disciplinary proceeding against an attorney involves neglect of the matters of two separate clients. The underlying cause of the violations was respondent’s unwillingness to reject legal employment offered to him. Respondent, Stanley M. Dietz (Dietz), was born January 21, 1927.

He has been a member of the Bar of this Court since May 1958. He also is admitted to practice before the courts of ⁶³⁹ the District of Columbia and before the trial and appellate courts of the United States in Maryland and in the District of Columbia. His practice is primarily the defense of criminal cases. He has maintained an office for the practice of law at various locations in downtown Washington, D.C., and out of his home in Montgomery County, Maryland.

In the first half of 1991 two complaints were filed with Bar Counsel against Dietz by former clients, one by Nikita Jurkevich (Jurkevich) and one by Ona Caine (Caine). When the Attorney Grievance Commission filed a petition for disciplinary action against Dietz in this Court, we referred the matter for hearing to Judge James L. Ryan of the Circuit Court for Montgomery County. Judge Ryan has concluded that Dietz violated a number of provisions of the Maryland Lawyers’ Rules of Professional Conduct. 1 Dietz has not filed any exceptions to Judge Ryan’s findings of fact or conclusions of law. Bar Counsel has filed exceptions that ask us to find additional violations in the Caine case.

I The Jurkevich matter was a personal injury claim. On February 24, 1988, Jurkevich was struck by a motor vehicle when, as a pedestrian, he had been crossing Riva Road in Annapolis. Jurkevich testified before Judge Ryan that he had stepped into Riva Road at an intersection, but he did not recall whether he was within a crosswalk boundary. He remembered nothing further about the accident.

The police report reflects that Jurkevich was struck by a northbound vehicle, seventy-five feet south of the nearest intersection. Jurkevich was hospitalized in a shock trauma unit for three weeks. As a result of the injuries his medical bills were approximately $30,000, and his loss of earned income was approximately $20,000. ⁶⁴⁰ Jurkevich initially engaged an attorney practicing in Annapolis to represent him. That attorney-client relationship ended sometime after the attorney had received a letter of October 3, 1988, from the insurer of the motor vehicle, denying the claim.

After investigation, the insurer took the position that Jurkevich’s failure to yield to vehicular traffic was “the primary causal factor” of the accident. Before Judge Ryan, Jurkevich testified that he and the attorney in Annapolis had “a personality difference” that was “just differences of opinion.” On July 31, 1989, Jurkevich met with Dietz and delivered the file obtained from the Annapolis attorney. Its contents included, at least, medical reports, the police accident report, correspondence, and photographs of Jurkevich taken after the accident. Jurkevich signed a contingent fee retainer agreement form. 2 Jurkevich testified that he and Dietz discussed contributory negligence and the possibility of last clear chance.

Under the retainer agreement form, the client bears costs, but Jurkevich made no deposit toward costs. Jurkevich testified that Dietz said that he would “turn over the file, such as it was, to [an associate,] Joe Collier, and he would look into it.” Dietz never told Jurkevich that Dietz was not going to take his case or not going to continue with his case. Dietz’s version of the July 31, 1989, meeting differs. Dietz testified that he told Jurkevich that he, Dietz, would decide whether or not to take on the matter after Collier had reviewed it.

Collier at some point did review the file, and found that there was no merit to the case. Judge Ryan found that an attorney-client relationship arose under which Dietz undertook to represent Jurkevich in his personal injury claim. Judge Ryan made no finding of fact on the conflict in testimony, but that is immaterial to the exis ⁶⁴¹ tence of the attorney-client relationship. In addition to the absence of any exception by Dietz, and in addition to the clear support for the finding in the testimony of Jurkevich, the relationship arose even if Judge Ryan relied exclusively on the testimony of Dietz.

This is because of the ambiguity surrounding Dietz’s version of his undertaking and the absence of any clear rejection or termination by Dietz of the representation. A somewhat similar problem was one aspect of the ethical violations in Attorney Grievance Comm’n v. Pinkney, 311 Md. 137 , 532 A.2d 1367 (1987). There, we approvingly quoted the hearing judge (Chasanow, J.) when he said that the attorney “ ‘had an obligation to advise her client if she did not believe that there was a valid claim, and she was not going to file suit on her client’s behalf.’ ” Id. at 142 , 532 A.2d at 1370 . Professor Wolfram’s description of this unfortunately all too frequent scenario is apt. “[T]he lawyer may have come to believe that further representation may not be warranted because developments after the initial consultation indicate that the client’s legal position is much weaker than first conceived.

A lawyer in such cases may be tempted to temporize, doing nothing until the client gets back into contact with a request for information or action. Such a course, however, can find the lawyer defending his or her inaction in a legal malpractice action and, at the least, may produce the kind of communication breakdown that is the source of a great deal of client dissatisfaction. “It is far preferable for the lawyer to precipitate a client decision on whether or not to continue the matter or whether to continue the matter with another lawyer. The lawyer should take some definite step to do so, such as by sending a letter carefully explaining the reason why the representation has slowed and, if appropriate, indicating that the lawyer will consider that the client wishes the lawyer to cease the representation if no further word is received from the client.” ⁶⁴² C. Wolfram, Modem Legal Ethics § 9.5.1, at 543 (1986); see also 1 G. Hazard, Jr. & W. Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.3:106, at 75-76 (2d ed. 1992). ■ After their July 31, 1989, meeting, Jurkevich telephoned Dietz on numerous occasions. Jurkevich estimated that he spoke with Dietz personally fifty or seventy-five percent of the time when these calls were placed but there is no direct evidence from Jurkevich as to what Dietz said.

Dietz indicated that he would personally review the file to see if he disagreed with Collier. In any event, the file on Jurkevich’s claim was misplaced and was not located for over two years. Dietz had maintained offices in Washington, D.C., in a suite of four rooms in a building on I Street. On May 30, 1990, Dietz moved to a suite of three small rooms in a building on Albermarle Street.

During that move, the Jurkevich file, which had been on Dietz’s desk, was put in a box with broken office equipment. Although Dietz’s employee made several searches for the Jurkevich file, it was not found. Eventually, on November 6, 1992, when economic circumstances forced Dietz to move to an even smaller office in the Albermarle Street building, the file was found. Jurkevich knew that limitations would run on his claim on February 24, 1991.

He testified that after November 1990 Dietz’s secretary had told him that his file was lost but that searches were being made for it. 3 By letter of January 14, 1991, Jurkevich discharged Dietz. Suit never was filed on Jurkevich’s behalf, and the record is silent as to whether Jurkevich consulted any other attorney after Dietz had been engaged. In the Jurkevich case Judge Ryan concluded that Dietz violated Rule 1.1, by failing to provide competent representation; Rule 1.3, by failing to act with reasonable diligence and ⁶⁴³ promptness; Rule 1.4, by failing to keep the client reasonably informed; and Rule 1.15, by failing appropriately to safeguard the client’s file. These specific violations, viewed cumulatively on the facts of this case, present, in substance, a termination of the lawyer-client relationship by Dietz, without communicating it to the client. “[A] lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client.... ” Rule 1.16(b).

Had Dietz terminated the representation in a proper fashion, his obligation would have been to “take steps to the extent reasonably practicable to protect [the] client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, [and] surrendering papers and property to which the client is entitled.” Rule 1.16(d). Here there is no proof to a clear and convincing standard that Dietz’s uncommunicated withdrawal from representation had a material adverse effect on the personal injury claim of Jurkevich. On this record, that claim had no value. II The other complainant, Caine, is a roofing contractor.

On November 19,1990, Caine had been sued in the District Court of Maryland in Montgomery County by another contractor who had subcontracted to Caine the roofing work on a home improvement contract. Caine consulted Dietz. She was anxious to minimize the costs of litigation. Dietz undertook the representation and was paid $500.

Before Judge Ryan, Dietz maintained that the fee arrangement was $500 for each day of any court appearance, while Caine maintained that $500 was a flat fee for the representation. Judge Ryan found it unnecessary to resolve that dispute. There is no dispute that, under their agreement, Caine would perform all of the secretarial work. An answer and counterclaim to the general contractor’s suit was filed January 3, 1991.

February 6, 1991, was the trial date initially set by the court, but the case was postponed on February 6 to the afternoon of April 10, 1991. This new date ⁶⁴⁴ was a specially assigned trial date because of the number of witnesses involved. All of the violations found by Judge Ryan concern Dietz’s failure to appear for trial on April 10 and out of his informing Caine that it was unnecessary for her and her witnesses to appear at the scheduled time. These violations arose out of the following events.

On or shortly prior to April 9, 1991, Dietz received a telephone call from, or on behalf of, Erol Cole (Cole), a Jamaican national whom Dietz previously had represented. Cole had been arrested in Delaware, and the police had found a small quantity of marijuana in his wallet. There was to be a hearing on April 9 before the Immigration and Naturalization Service (INS) in Philadelphia. Dietz agreed to represent Cole at that hearing.

Later Dietz was advised that the INS hearing would not be held on April 9, because the van transporting Cole to Philadelphia had broken down. On the morning of April 10 Dietz learned that the INS hearing would take place that afternoon, when the Caine case was to be tried. Dietz telephoned counsel for the adverse party in the Caine case and requested consent to a postponement. Adverse counsel undertook to consult with the client.

Dietz telephoned Caine to advise that the case might be postponed. Adverse counsel advised Dietz that a postponement was agreeable. Dietz telephoned the District Court’s clerk’s office and was advised that he would have to appear in court to request a postponement. At Dietz’s request, adverse counsel then agreed to apply for the postponement in open court.

At about noon on April 10 Dietz telephoned Caine and told her that the case was postponed. Dietz left for client Cole’s hearing in Philadelphia. At the scheduled trial time, the trial judge was less accommodating than adverse counsel. The District Court denied the postponement, dismissed Caine’s counterclaim, and entered a judgment by default against Caine for $3,500, plus $272.88 interest and $20 court costs. ⁶⁴⁵ Subsequently, Dietz moved in the District Court to set aside the default judgment, but that motion was denied.

Caine terminated the representation and engaged other counsel. Successor counsel appealed to the Circuit Court for Montgomery County which set aside the default judgment and remanded the matter for trial on the merits to the District Court. At the retrial, conducted by successor counsel, judgment on the general contractor’s claim was entered in favor of Caine, but judgment was entered in favor of the general contractor on Caine’s counterclaim. Judge Ryan found three violations of the Rules by Dietz in the Caine matter: (1) a lack of diligence in violation of Rule 1.3 by instructing the client not to appear and by failing to appear in court on April 10; (2) a violation of Rule 1.16(a) by representing Cole when Dietz was to appear for trial of the Caine case; 4 and (3) a violation of Rule 8.4 “by telling Ona Caine that her case had been postponed when it had not been postponed, and by not appearing for trial in her case when he was required to