Attorney Grievance Commission v. Dominguez

BATTAGLIA, J. Denese Dominguez, Respondent, was admitted to the Bar of this Court on June 17, 2008. On October 24, 2011, the Attorney Grievance Commission (“Bar Counsel”), acting pursuant to Maryland Rule 16-751(a), 1 filed a “Petition for Disciplinary or Remedial Action” against Dominguez, which incorporated three complaints. The first complaint was filed by ³¹¹ Ms. Antonia K. Fasanelli regarding Dominguez’s work at the Homeless Persons Representation Project (“Project”). The second and third complaints were related to Dominguez’s representation of Wanda Suter in a wrongful termination action against her former employer, A.L. Goodies General Store.

With respect to the complaint regarding Dominguez’s work at the Project, Bar Counsel alleged that Dominguez violated Maryland Lawyers’ Rules of Professional Conduct 1.1 (Competence), 2 1.3 (Diligence), 3 1.4 (Communication), 4 1.16(d) (Declining or Terminating Representation), 5 8.1(b) (Bar Admission ³¹² and Disciplinary Matters), 6 and 8.4(a), (c), and (d) (Misconduct) 7 by failing to complete and file expungement petitions on behalf of clients assigned to her, failing to terminate her representation of those clients and to return their records to the Project, failing to communicate with those clients, and by attempting to mislead Bar Counsel by stating that she had not been assigned a client, when, in fact, she knew that the client had been assigned to her. With respect to Dominguez’s representation of Ms. Suter, Bar Counsel alleged that Dominguez violated Maryland Lawyers’ Rules of Professional Conduct 1.1, 1.3, 1.4, and 8.4(a) and (d) by failing to respond properly to discovery requests in an employment suit she initiated on Ms. Suter’s behalf, even after repeated orders from the Circuit Court, which resulted in an award of attorneys’ fees against Ms. Suter; incorrectly informing Ms. Suter that she need not attend a hearing, which resulted in a Show Cause Order requiring Ms. Suter to show cause as to why her case should not have been dismissed with prejudice for Dominguez’s failure to appear in court; and failing to appear in court on behalf of Ms. Suter at a subsequent hearing. In an Order ³¹³ dated November 2, 2011, this Court referred the three complaints, which had been consolidated into one Petition for Disciplinary or Remedial Action by Bar Counsel, to Judge Paul A. Hackner of the Circuit Court for Anne Arundel County for a hearing, pursuant to Rule 16-757. 8 Dominguez was personally served with a Petition for Disciplinary or Remedial Action, as well as this Court’s Order, Writ of Summons, Interrogatories, Request for Production of Documents, and a Request for Admission of Facts and Genuineness of Documents. She did not file an Answer within fifteen days.

An order of default was entered against her. A notice of the default order was mailed to her, as well as a notice of an evidentiary hearing to be held on February 28, 2012. Domin ³¹⁴ guez did not move to vacate the default order and failed to appear at the February 28 hearing. Dominguez failed to appear at oral argument before this court.

Immediately after oral argument, a Per Curiam Order disbarring Dominguez was entered on May 8, 2012. The Order stated: For reasons to be stated in an opinion later to be filed, it is this 8th day May, 2012, ORDERED, by the Court of Appeals of Maryland, that the respondent, Denese Dominguez, be, and she is hereby, disbarred, effective immediately, from the further practice of law in the State of Maryland; and it is further ORDERED that the Clerk of this Court shall strike the name of Denese Dominguez from the register of attorneys, and pursuant to Maryland Rule 16-760(e), shall certify that fact to the Trustees of the Client Protection Fund and the clerks of all judicial tribunals in the State; and it is further ORDERED that respondent shall pay all costs as taxed by the Clerk of this Court, including the costs of all transcripts, pursuant to Maryland Rule 16 — 761(b), for which sum judgment is entered in favor of the Attorney Grievance Commission of Maryland against Denese Dominguez. We shall now explain the reasons for Dominguez’s disbarment. After hearing evidence presented by Bar Counsel, Judge Hackner issued the following Findings of Fact and Conclusions of Law: 9 Findings of Fact Respondent was admitted to the Maryland Bar on June 17, 2008.

Respondent maintained a virtual office at 400 ³¹⁵ East Pratt Street, Suite 800 Baltimore, MD 21211 until sometime in 2011, when she no longer utilized the facility. Respondent most recently maintained a law office in her home located at 8552 O’Keefe Drive Severn, Maryland 21144. Respondent’s Misconduct Related to the Homeless Persons Representation Project Sometime in June 2006, Respondent began to serve as a volunteer attorney for the Homeless Persons Representation Project, (HPRP). HPRP staff members assigned the Respondent the duty of completing expungement petitions pro bono on behalf of several homeless persons.

The expungement filings were time sensitive matters since homeless persons commonly encounter law enforcement officials during their daily routines. At the November 2009 HPRP attorneys’ meeting, Respondent appeared without her clients’ files and requested permission to send her prepared expungement petitions to HPRP prior to the December 2009 attorneys’ meeting. By December 2009, HPRP had not received the completed expungement petitions that Respondent had promised to submit at the November attorneys’ meeting. On December 15, 2009, Respondent and HPRP client, George A. Lee, both signed an HPRP retainer agreement and Mr. Lee’s expungement petition.

On June 29, 2010, Antonia Fasanelli, HPRP Executive Director filed a complaint with the Attorney Grievance Commission. On August 12, 2010, Respondent provided a response to Ms. Fasanelli’s complaint and denied that George Lee was her client. On October 6, 2010, Sterling Fletcher, Commission Investigator, retrieved Respondent’s HPRP files, including Mr. Lee’S file, during Mr. Fletcher’s interview with Respondent. On January 24, 2011, the Respondent entered into a Conditional Diversion Agreement with the supervision of a law practice monitor.

Shortly after the Conditional Diversion Agreement was signed, Re ³¹⁶ spondent failed to communicate with both her law practice monitor and Bar Counsel. Revocation of Respondent’s Conditional Diversion Agreement On January 24, 2011, the Attorney Grievance Commission approved a Conditional Diversion Agreement between Bar Counsel and Respondent, pursuant to Maryland Rule 16-731(d). By signing the Agreement, Respondent acknowledged engaging in professional misconduct that violated Rules 1.1, 1.3, 1.4(a), 1.16(d), and 8.4(d) of the Maryland Lawyers’ Rules of Professional Conduct in relation to her representation. In the Conditional Diversion Agreement, the Respondent acknowledges that she failed to act with reasonable diligence in representing clients at HPRP where the Respondent served as a volunteer attorney.

Respondent also failed to respond to Ms. Fasanelli’s requests for client files, and to communicate with her clients or terminate her relationship with her HPRP clients. Under the Conditional Diversion Agreement, Respondent agreed to a course of remedial action that required her compliance with the terms of the Agreement, including the monitoring of her practice by a law practice monitor, expressly conditioned on Respondent not engaging in any further conduct that would constitute professional misconduct. During the pendency of the Conditional Diversion Agreement, Bar Counsel received two (2) related grievance complaints alleging additional misconduct by Respondent in connection with her representation of Wanda Suter. The Respondent failed in a material way to comply with the conditions of the Conditional Diversion Agreement.

On or about June 2, 2011, Bar Counsel filed a Petition to Revoke Conditional Diversion Agreement pursuant to Maryland Rule 16 — 736(f)(2). The respondent did not file a written response to the petition. ³¹⁷ On July 28, 2011, Bar Counsel received notice that the Attorney Grievance Commission, having concluded that Respondent was in material default of the Conditional Diversion Agreement, revoked the Agreement pursuant to Rule 16 — 736(f)(3). The Commission’s notice further directed Bar Counsel to proceed in accordance with Rule 16-751. Respondent’s Misconduct Related to Her Representation of Wanda Suter On or about October 11, 2009, Respondent was retained by Wanda M. Suter to represent Suter in an employment matter related to wrongful termination on a contingency fee basis.

On January 4, 2010, Respondent filed suit on behalf of Suter in the Circuit Court for Anne Arundel County against Suter’s former employer’s property management company, HP Properties Management (“HP Management”). On May 18, 2010, HP Management filed a Motion for Sanctions and/or a Motion to Compel after the Respondent failed to respond to discovery that had been served upon her on April 15, 2010. On June 23, 2010, the Court ordered the Respondent to answer HP Management’s discovery within thirty days of the aforementioned order. On July 19, 2010, Respondent filed an answer to HP Management’s discovery.

On July 26, 2010, Respondent filed the Plaintiffs Designation of Expert Witness. On August 13, 2010, HP Management moved to strike Plaintiffs Designation of Expert Witness. On September 9, 2010, HP Management filed a “Motion for Sanctions or, in the Alternative, An Order Compelling Discovery and a Request for Award of Attorney’s Fees.” On October 12, 2010, the Court denied HP Management’s Motion to' Strike and ordered the Respondent to answer all interrogatories related to Suter’s expert witness within fifteen (15) days. On October 26, 2010, the Court ordered Suter to pay $250.00 in attorney’s fees to HP Management within fifteen (15) days of the date of the order and produce full and complete responses to HP Management’s discovery request due to the Respondent’s inability to respond to discovery. ³¹⁸ On November 16, 2010, HP Management filed a third Motion for Sanctions and a second Motion to Strike Suter’s Designation of Expert Witness.

On January 13, 2011, Suter sent a text message to Respondent’s cellular telephone which asked her to contact Ronald Grossman, a case worker with PBJ Consultants assisting Suter with health matters. Sometime in late January 2011, Respondent informed Mr. Grossman, “that she had gotten in over her head with Suter’s case and could not handle it any more.” Respondent failed to terminate her representation. In late January 2011, Respondent incorrectly informed her client that she did not need to appear in court on February 1, 2011 for a hearing. Respondent did not appear either.

On February 1, 2011, the Court issued a Show Cause Order for Respondent’s Failure to Appear and ordered that both parties appear in Court for a March 23, 2011 hearing. The Court also issued an Order precluding Suter from introducing her expert witness testimony. On March 23, 2011, Respondent failed to appear or show cause in Court on behalf of Suter. The Honorable Arthur M. Ahalt issued an Order assessing fees against Respondent in the amount of $1,200.00 for Robert Kostecka, HP Management’s counsel, and Suter’s former employer, Michael Blonder, in the amount of $280.00.

In addition, Judge Ahalt ordered that “this matter be referred to the Maryland Attorney Grievance Commission for appropriate investigation.” On March 24, 2011, Michele L. Houston, Civil Case Coordinator for the Circuit Court for Anne Arundel County, sent Bar Counsel a copy of Judge Ahalt’s Order which cited Respondent’s failure to appear. On April 10, 2011, Suter also filed a complaint with the Commission against Respondent. On April 26, 2011, Leslie Pladna, Esquire, Suter’s subsequent counsel, filed a “Plaintiffs Ex Parte Emergency Motion to Dismiss Action Without Prejudice” with the Court. On May 25, 2011, Suter’s Motion to Dismiss was granted without prejudice by the Court. ³¹⁹ Conclusions of Law This court finds that there was clear and convincing evidence presented to establish the allegations of the Commission’s Petition for Disciplinary or Remedial Action against Respondent and that such evidence supports each violation of the Maryland Lawyers’ Rules of Professional Conduct charged in the Petition.

Respondent’s Misco'nduct Related to the Revocation of Respondent’s CDA And the Homeless Persons Representation Project Based upon Respondent’s acknowledgment of misconduct contained within the paragraph 2 of the Conditional Diversion Agreement that she voluntarily signed, this court concludes that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct in connection with her representation of seven (7) Project clients as described in the matter docketed as BC Docket No. 2011-015-02-16, which was a complaint filed by Antonia Fasanelli: Rule 1.1 A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3. Diligence.

A lawyer shall act with reasonable diligence and promptness in representing a client. Rule 1.4. Communication. (a) A lawyer shall: keep the client reasonably informed about the status of the matter; Rule 1.16.

Declining or Terminating Representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the ³²⁰ client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. Rule 8.4.

Misconduct. It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice; By violating the aforementioned Rules of Professional Conduct, it follows that Respondent committed professional misconduct in violation of Rule 8.4(a). In addition, on August 12, 2010, Respondent wrote a response to Bar Counsel to Ms. Fasanelli’s complaint denying that she had ever been retained by Mr. Lee. Respondent’s denial of being retained by Mr. Lee constitutes a misrepresentation to Bar Counsel and therefore is a violation of 8.4(c).

Finally, this court concludes that Respondent’s failure to comply with the remedial terms and conditions of the Conditional Diversion Agreement, including but not limited to her failure to provide the law practice monitor designated to report to Bar Counsel with access to information he needed to fulfill his reporting obligations, constituted conduct prejudicial to the administration of justice. By engaging in conduct prejudicial to the administration of justice, Respondent violated Rule 8.4(d). Additionally, Respondent violated Rule 8.1(b) by failing to respond to Bar Counsel’s lawful demands for information. Respondent’s Misconduct Related to Her Representation of Wanda Suter Respondent failed to respond to discovery served by opposing counsel Mr. Kostecka on March 30, 2010.

Although the Circuit Court repeatedly ordered Respondent to answer HP Management’s discovery and finally issued sane ³²¹ tions, Respondent failed to do so. In addition, Respondent advised Suter that she did not need to appear in court on February 1, 2011 for a hearing. On February 1, 2011, the Court issued a Show Cause Order for Respondent’s Failure to Appear and ordered that both parties appear in court for a March 23, 2011 hearing. Respondent’s failure to respond to discovery on behalf of Suter and appear in court violates Rule 1.1 and 1.3, Attorney Grievance Commission v. Harris, 366 Md. 376, 395 , 784 A.2d 516, 527 (2001) and Attorney Grievance Commission v. Tinsky, 377 Md. 646 , 835 A.2d 542 (2003).

Respondent’s instruction to her client not to appear at her February 1, 2011 hearing and her own failure to appear on that date further constitute violations of Rule 1.1. Respondent’s failure to pursue Suter’s case once Judge Ahalt issued the Show Cause order violated Rule 1.3. Respondent’s non-responsiveness to Suter also violated Rule 1.4(a)2 and 1.4(a)3 in that she failed to respond to Suter’s repeated attempts to reach the respondent beginning in January 2011. Respondent’s numerous violations of the Maryland Lawyers’ Rules of Professional Conduct as set forth above constitute a violation of Rule 8.4(a), which provides that it is professional misconduct for a lawyer to violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct.

Respondent’s continuous disregard for her client’s interests and failure to withdraw her appearance in Suter’s case constitute conduct prejudicial to the administration of justice. Respondent’s failure to respond to discovery resulted in attorney’s fees being assessed to Suter. Respondent’s failure to appear for a court hearing and her abandonment of her client further demonstrate a clear violation of Rule 8.4(d). Attorney Grievance v. Mooney, 359 Md. 56, 83 , 753 A.2d 17, 31 (2000).

For these reasons, this court concludes that Respondent, Denese Dominguez, Esquire violated Rules 1.1, 1.3, 1.4, ³²² 1.16(d), 8.1(b), and 8.4(a), 8.4(c) and (d) of the Maryland Lawyers’ Rules of Professional Conduct. Essentially, Judge Hackner found that, while Dominguez was working on behalf of clients assigned to her by the Homeless Persons Representation Project, she failed to act with diligence in representing her clients, failed to respond to the Executive Director’s requests to have the