Attorney Grievance Commission v. Draper

ADKINS, Judge. Because we conclude that respondent, Virginia Sally Draper, is “incompetent” within the meaning of Md.Rule BV1 h, we shall place her on inactive status. 1 Rule BV11 b 4 (iv). ⁴³⁷ The Attorney Grievance Commission, acting pursuant to Rule BV9, filed a petition seeking disciplinary action against Draper, a member of the Maryland Bar since 7 December 1976. The petition charged violation of Disciplinary Rules 1-102(A)(1), (5), and (6); 2-110(B)(3); and 6-101(A)(3). 2 It also alleged that Draper “was incompetent as defined by” Rule BV1 h. We referred the matter to Judge William R. Buchanan.

Draper did not respond to the petition, nor did she attend the hearing Judge Buchanan held after an order of default had been entered against her. Judge Buchanan found that Draper had undertaken to represent Eleanor N. Hunt in a divorce case, but that Draper “suspended preparation of the case and ceased all contact with Mrs. Hunt” after a preliminary settlement had been worked out. As a consequence, “Mrs. Hunt [was] forced to proceed pro se on all subsequent matters, including the hearing on the merits of her divorce.” He further found that Draper had undertaken to represent Silvia Moody in a wrongful discharge case. Once again, after “negotiating a settlement between Ms. ... ⁴³⁸ Moody and her former employer,” Draper “failed to follow up on the terms of the settlement____” Judge Buchanan concluded that Draper had violated DRs 1- 102(A)(1), (5), and (6); and 6-101(A)(3).

He recognized that an Attorney Grievance Commission inquiry panel, after a 1985 hearing, had found that Draper suffered from “a serious mental disorder.” Nevertheless, he could not “determine with any degree of certainty ... whether ... Ms. Draper was experiencing such disorders during the Hunt and Moody cases in 1983, so as to have warranted her mandatory withdrawal from those two cases.” Therefore, he found no violation of DR 2-110(B)(3). Draper does not except to any part of Judge Buchanan’s report. The Commission notes three exceptions.

First, the Commission excepts to Judge Buchanan’s failure to set forth as findings of fact certain matters deemed admitted because of Draper’s failure to respond to requests for admissions of fact and genuineness of documents filed by the Commission. It appears that Judge Buchanan treated all of those matters as established. He said he “must deem all allegations made by [the Commission] in its Request for Admissions of Facts and Genuiness [sic ] of Documents as admitted pursuant to Maryland Rule 2- 424.” He did not, however, recite those facts in his report, nor did he incorporate them in it by reference. We believe the better practice requires him to do one or the other, and we sustain this first exception.

Next, the Commission excepts to Judge Buchanan’s failure to find Draper in violation of DR 2-110(B)(3). A finding of violation of DR 2-110(B)(3) would require evidence that when Draper was handling the Hunt and Moody matters she was suffering from a “mental ... condition” that rendered it “unreasonably difficult for [her] to carry out the employment effectively.” The only evidence on that point ⁴³⁹ was testimony of A. Dwight Pettit, Esq., before the inquiry panel. 3 Pettit, with whom Draper was associated at the critical times, opined that Draper had been “ill” and “depressed.” There was little evidence of the precise nature of the illness or its symptomology. Nor was there persuasive testimony tending to establish a causal link between Draper’s illness (whatever it may have been) and her handling of the Hunt and Moody cases. See Attorney Grievance Comm. v. Aler, 301 Md. 389 , 483 A.2d 56 (1984), and Attorney Grievance Comm. v. Truette, 299 Md. 435 , 474 A.2d 211 (1984) (causal connection between mental condition and particular conduct established).

Factual findings in an attorney disciplinary hearing held pursuant to Rule BV10 must be supported by clear and convincing evidence. Rule BV10 d. The factual findings of the hearing judge are prima facie correct and will not be disturbed on review unless clearly erroneous. Attorney Grievance Comm. v. Myers, 302 Md. 571 , 490 A.2d 231 (1985).

On this state of the record, we cannot say that Judge Buchanan was clearly erroneous in concluding, in effect, that there was no clear and convincing evidence of a violation of DR 2-110(B)(3). The Commission’s second exception is overruled. Finally, the Commission excepts because Judge Buchanan failed to find Draper was “incompetent” because she was “unable to render adequate legal service by reason of mental