Attorney Grievance Commission v. Dunietz

HARRELL, Judge. Pursuant to Maryland Rule 16-709(a), 1 Bar Counsel, on behalf of the Attorney Grievance Commission (“Petitioner”), and at the direction of the Review Board, filed a petition with this Court initiating disciplinary proceedings against Jerry Sam Dunietz, Esquire (“Respondent”), a member of the Mary ⁴²¹ land Bar since December 1981. In this petition, Bar Counsel asserted one complaint in connection with Respondent’s representation of Jimmy Park in two separate, but related, legal matters, alleging violations of the Maryland Rules of Professional Conduct (MRPC) 1.1 (competence); 1.3 (diligence in representation); 1.4(a) and (b) (communication with clients); 1.16(a)(2) and (d) (declining or terminating representation); 8.1(b) (disciplinary matters); and 8.4(c) and (d) (misconduct). This Court referred the matter to Judge Michael D. Mason of the Circuit Court for Montgomery County to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Md. Rules 16-709(b) 2 and 16-711(a). 3 On 25 June 2001, Respondent was served with the Petition for Disciplinary Action, Order and Writ of Summons consistent with Md. Rule 16-709(d). 4 Respondent, however, failed to file a timely answer to the petition as required by Md. Rule 16-709(e)(2). 5 Further, the Respondent did not respond to Petitioner’s interrogatories, request for production of documents, and request for admission of facts and genuineness of documents.

An Order of Default was entered on 27 July 2001, and an evidentiary hearing was scheduled for 6 September 2001. Respondent did not move to vacate the Order of Default. ⁴²² At the evidentiary hearing, at which Respondent was not present, Petitioner presented evidence 6 in support of the charges. In addition, Petitioner submitted proposed findings of fact and conclusions of law to the hearing judge. Judge Mason reviewed and adopted Petitioner’s submission, concluding, by clear and convincing evidence, that Respondent violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.16(a)(2) and (d), 8.1(b), 8.4(c) and (d), relating to his representation of Mr. Park.

Respondent has not filed with this Court any exceptions to the hearing judge’s findings of fact or conclusions of law. Petitioner filed with this Court a recommendation for sanction, urging Respondent’s disbarment. Respondent did not appear at oral argument before the Court. I. From the evidentiary record, Judge Mason made the following findings of facts pertaining to Respondent’s conduct regarding his representation of Mr. Park.

In September 1998, Jimmy Park obtained a judgment against Rising Star, Inc., Hae Y. Chi and Don S. Chi in the amount of $105,000 in compensatory damages, $7,962.50 in prejudgment interest and $75,000 in punitive damages. After the judgment was entered, the Chis filed a voluntary petition for bankruptcy in October 1998. Mr. Park retained Respondent on November 27, 1998 to pursue the collection of his judgment through the Chis’ bankruptcy and paid Respondent a $1,500 retainer. Respondent undertook to represent Mr. Park as a creditor in the Chis’ bankruptcy proceeding.

The Chis’s Chapter 13 bankruptcy was converted to a Chapter 7 proceeding on or about February 10, 1999. Thereafter on February 16, 1999 a notice was sent to ⁴²³ the creditors advising that the deadline to file a complaint to determine dischargeability of certain debts was May 9,1999. Although Respondent received the February 16, 1999 notice and advised Mr. Park that he would file a complaint to determine the non-dischargeability of his debt, he failed to do so by the deadline of May 9, 1999. Even though the Chis’ counsel had indicated to Respondent that she would consent to the relief requested, Respondent did not file a complaint on behalf of Mr. Park.

Respondent failed to advise Mr. Park that he had not timely filed the complaint. Furthermore, when Mr. Park requested status of the matter, Respondent advised him not to worry and that he would take care of it. Respondent never sought to re-open the matter. Moreover Respondent never advised Joseph F. Cunningham, Esquire, [an] attorney who continued to represent Mr. Park regarding the non-bankruptcy aspects of his claim against the Chis, that such action might be possible.

Mr. Park, through Mr. Cunningham, filed a malpractice action against the attorney, Tntak Lee, who had represented Mr. Park in the underlying transaction with the Chis. Mr. Lee filed for bankruptcy in January 1999. Mr. Park retained Respondent to move the bankruptcy court to lift the automatic stay in order to pursue recovery through the malpractice action from Mr. Lee’s malpractice insurance carrier. Mr. Park paid Respondent a retainer of $500 to handle the matter.

Respondent failed to file a motion even though Mr. Lee’s counsel had indicated to Respondent that he would consent to re-opening the bankruptcy and lifting the automatic stay. Respondent failed to respond to requests for status from Mr. Cunningham and another bankruptcy attorney consulted by Mr. Park. Thereafter, on October 18, 1999, Mr. Park made a complaint to the Attorney Grievance Commission concerning Respondent’s inac-tions in handling the two bankruptcy matters. The Attorney Grievance Commission[,] seeking an explanation from Respondent concerning Mr. Park’s complaint, wrote to him on October 18, 1999, November 12, 1999, ⁴²⁴ December 30, 1999 and January 19, 2000.

Respondent failed to respond to those letters. On February 8, 2000, Michael H. Peregoy an Investigator for the Attorney Grievance Commission, contacted Respondent who acknowledged receipt of those letters. Respondent promised that he would submit a response to the Attorney Grievance Commission by February ,11, 2000. Respondent failed to provide a response.

Thereafter Mr. Peregoy made another visit Respondent’s office on April 7, 2000 to obtain Respon-. dent’s response and á copy of his file.

II

Based upon these findings of fact, the hearing judge concluded, by clear and convincing evidence, that Respondent had violated the MRPC through his following actions: A. Violation of MRPC 1,1 Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Judge Mason concluded that Respondent incompetently represented Mr. Park in both the Chi and Lee bankruptcy matters in violation of Rule 1.1 “by not exhibiting the thoroughness and preparation reasonably necessary for the representation by his failure to prepare and file the complaint in the Chis’ matter by May 9,1999 and by his failure to move to have the automatic stay lifted in the Lee matter even though opposing counsels in those two matters were not opposed to the relief sought.” The hearing judge concluded that Respondent further violated MRPC 1.1 by failing to cooperate and assist Mr. Cunningham, Mr. Park’s attorney who continued to represent Mr. Park in the non-bankruptcy aspect of his claims against the Chis. ⁴²⁵ B. Violation of MRPC 1.3 Rule 1.3. Diligence. A lawyer shall act with reasonable diligence and promptness in representing a client. Finding that “Respondent’s failure to file the appropriate documents in the Chi and Lee bankruptcy matters demons-trat[ed] a lack of diligence,” the hearing judge concluded that Respondent was in violation of Rule 1.3.

C. Violation of MRPC 1.4(a) and (b) Rule 1.4. Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessaiy to permit the client to make informed decisions regarding the representation.

The hearing judge concluded that Respondent violated Rule 1.4(a) and (b) by “failing to communicate with Mr. Park and keep him informed of the status of the two matters despite Mr. Park’s requests for status,” and by his failure to “communicate with Mr. Park’s attorney, Mr. Cunningham, in the Lee matter.” Moreover, the hearing judge concluded that Respondent further violated Rule 1.4 by “failing] to respond to requests for status updates from Mr. Cunningham and from another bankruptcy attorney consulted by Mr. Park.” D. Violation of MRPC 1.16(a)(2) and (d) Rule 1.16. Declining or terminating representation. (a) [A] lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if: . .. (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client;.... ⁴²⁶ (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 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 that has not been earned.

The lawyer may retain papers relating to the client to the extent permitted by other law. Observing that “[a]t no time during the representation did Respondent advise Mr. Park that he could not handle the representation or was not going to follow through with the representation,” Judge Mason concluded that Respondent was in violation of Rule 1.16(a)(2). Moreover, with regard to Respondent’s representation of Mr. Park in the Chi bankruptcy, he found that after Respondent missed the deadline to file a complaint to determine the dischargeability of the Chis’ debt to Mr. Park, he never sought to re-open the matter, nor did he advise Mr. Cunningham that such action might be possible. Similarly, the chancellor found that Respondent failed to file a motion to lift the automatic stay so that Mr. Park could pursue recovery in a malpractice action from Mr. Lee’s malpractice insurance carrier, and then failed to respond to requests from Mr. Cunningham, and another bankruptcy attorney consulted by Mr. Park, for status updates.

Judge Mason concluded that “Respondent’s abandonment of Mr. Park in the two matters” was a violation of Rule 1.16(d). E. Violation of MRPC 8.1(b) Rule 8.1. Bar admission and disciplinary matters. An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except ⁴²⁷ that this Rule does not require disclosure of information otherwise protected by Rule 1.6.

Finding that Respondent knowingly failed to respond to Petitioner’s repeated attempts to ascertain from Respondent what explanation he had concerning Mr. Park’s complaint, including four separate occasions of mailed correspondence as well as a personal visit from Petitioner’s investigator, the hearing judge concluded that Respondent violated Rule 8.1 by “his wilful failure to respond to Petitioner’s letters.” F. Violation of MRPC 8.4(c) and (d) Rule 8.4. Misconduct It is professional misconduct for a lawyer to: (e) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; Judge Mason concluded that Respondent violated Rule 8.4(c) by “misrepresenting to Mr. Park the status of the Chi matter,” when Respondent advised Mr. Park not to worry, that he would take care of it, when in fact, “he had not timely filed the complaint.” Moreover, the hearing judge concluded that Respondent’s “utter lack of action in completing the two matters on behalf of Mr. Park was prejudicial to the administration of justice in violation of Rule 8.4(d).” III. This Court has original jurisdiction over all attorney disciplinary proceedings. See Attorney Grievance Comm’n v. Snyder, 368 Md. 242, 253 , 793 A.2d 515, 521 (2002); Attorney Grievance Comm’n v. Harris, 366 Md. 376, 388 , 784 A.2d 516, 523 (2001); see also Md. Rule 16-709(b) (stating “[c]harges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in the Court of Appeals.”).

The hear ⁴²⁸ ing judge’s findings of fact “are prima facia [sic] correct and will not be disturbed unless clearly erroneous.” Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 21 , 762 A.2d 950, 960-61 (2000). See Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997); Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993). As to the hearing judge’s conclusions of law, “our consideration is essentially de novo.” Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (quoting Attorney Grievance