Attorney Grievance Commission v. Duvall

BELL, Chief Judge. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 filed a Petition For Disciplinary or Remedial Action against Mary I. DuVall, the respondent. The petition charged that the respondent violated Rules 1.4, Communication, 2 1.15, Safekeeping Property, 3 1.16, Declining or Terminating Repre ²³⁶ sentation, 4 and 8.1, Bar Admission and Disciplinary Matters, 5 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. 6 The respondent was also charged with violating Maryland Code (1989, 2000 Replacement Volume) § 10-306 of the Business Occupations and Professions Article. 7 We referred the case, pursuant to Rules 16-752(a), 8 to the Honorable William B. Spellbring, of the Circuit Court for ²³⁷ Prince George’s County, for hearing pursuant to Rule 16-757(c). 9 The respondent was not served personally, despite reasonable efforts to do so. Consequently, service of process was made, pursuant to Maryland Rule 16-753, on Janet Moss, Administrator of the Client Protection Fund of the Bar of Maryland.

Thereafter, an order of default was entered against the respondent and a hearing date set. Following the hearing, at which the respondent not appear or participate, the hearing court, “[hjaving considered the unrefuted aver-ments of the Petition for Disciplinary or Remedial Action, along with evidence presented by the Petitioner,” found facts by the clear and convincing standard and drew conclusions of law, as follows. Findings of Facts “The Respondent was admitted to the Maryland Bar on December 10, 1981. By an Opinion and Order of the Court of Appeals filed March 17, 2003, she was indefinitely suspended from the practice of law in Maryland, effective thirty days after the filing of the opinion.

Attorney Grievance Commission v. Duvall, 373 Md. 482 , 819 A.2d 343 (2003). The Respondent has not petitioned for reinstatement since her indefinite suspension took effect on April 16, 2003. “The legal representation which is the subject of the disciplinary complaint now before the court began several years prior to the commencement of the Respondent’s indefinite suspension. In August, 1996, Robert Ravenscroft retained the ²³⁸ Respondent to provide legal advice and services pertaining to the placement of Mr. Ravenscroft’s sister, Leah Ravenscroft, in the National Lutheran Home for the Aged in Rockville, Maryland. At the time of Mr. Ravenscroft’s initial contact with the Respondent, the Respondent maintained an office for the practice of law in College Park, Maryland. “On August 27, 1996, Mr. Ravenscroft gave the Respondent a personal check in the amount of $1,700.00, drawn on a checking account held in the name of Leah Ravenscroft.

The memo notation on the check indicated that $200.00 was to be applied toward the “costs” and $1,500.00 was for “fees.” The $1,500.00 portion designated for fees was an advance retainer to be earned by the Respondent at a billing rate of $125.00 per hour. The Respondent endorsed the $1,700.00 check “for deposit only.” Although the back of the negotiated check does not reflect whether the deposit was made to an attorney trust account, there is no question that the Respondent received the funds. “Initially, the legal action suggested to Robert Ravenscroft by the Respondent was to petition for a “conservatorship” of Leah Ravenscroft’s affairs. It was later decided that such action was not necessary, and that the Respondent instead prepared a Power of Attorney granting Robert Ravenscroft authority to handle Leah Ravenscroft’s affairs. “In the course of providing representation, the Respondent sent Mr. Ravenscroft two billing statements. The first, dated September 13, 1996, identified legal services rendered through that date and contained an entry stating that $431.25 had been taken as a payment from the Respondent’s escrow account for professional services rendered.

The second billing statement, dated May 2, 1997, identified additional legal services through that date, including the preparation of a Last Will and Testament for Leah Ravenscroft, and contained an entry stating that $171.25 had been taken as a “payment from account” for professional services rendered. The second billing statement reflected that as of May 2,1997, the Respondent was holding a balance of client funds in the amount of $1,097.50. ²³⁹ “In March 1999, Leah Ravenscroft was accepted as a resident at the National Lutheran Home in Rockville. Robert Ravenscroft testified in this proceeding that the only additional professional service rendered by the Respondent after May 2, 1997 was to prepare a real Estate Power of Attorney in August 1999 related to the sale of real property owned by Leah Ravenscroft in the District of Columbia. The Respondent never billed Mr. Ravenscroft for the preparation of that document. “By a letter dated August 1, 2001, sent to the Respondent’s office address in College Park, Mr. Ravenscroft requested in writing that the Respondent review her records and refund the balance of client funds due to Leah Ravenscroft.

The Respondent did not respond in any manner to Mr. Raven-scroft’s letter. At various times after August 2001, Mr. Ra-venscroft attempted to reach the Respondent by telephone but was unsuccessful. On January 3, 2003, he learned that the respondent’s office phone number had been disconnected. “In a letter dated January 6, 2003, Mr. Ravenscroft wrote to the Attorney Grievance Commission to report the Respondent’s actions and his inability to contact her. By a letter to the Respondent dated January 17, 2003, mailed to the Respondent’s home address in Greenbelt, Maryland, as provided by the Client Protection Fund, Bar Counsel forwarded Mr. Ra-venscroft’s complaint and requested that the Respondent respond in writing to that complaint within ten days.

The Respondent did not respond as requested. “On February 5, 2003, Bar Counsel sent the Respondent a second letter asking her to respond to Mr. Ravenscroft’s complaint by February 14, 2003. The original of that letter was sent to the Respondent’s home address by certified mail. A copy was mailed by regular first class mail. The certified mail envelope was returned by the U.S. Postal Service with a sticker providing a Post Office Box number in College Park.

The envelope sent by first class mail was not returned to the office of the Attorney Grievance Commission. ²⁴⁰ “The Respondent has not responded to Bar Counsel’s lawful demands for information in response to Mr. Ravenscroft’s complaint. Such requests were made before the commencement of the Respondent’s indefinite suspension. “The Respondent has not accounted for the balance of Leah Ravenscroft’s advance retainer, nor has she refunded the unearned client funds belonging to Leah Ravenscroft. Conclusions of Law “By failing to respond to Robert Ravenscroft’s request for an accounting of the retainer paid on behalf of Leah Raven-scroft and not keeping him informed as to the status of such funds, the Respondent violated Maryland Rule of Professional Conduct 1.4(a), dealing with communication. The Respondent’s failure to hold the unearned balance of the Ravenscroft retainer separate from her own property after May 2, 1997 may reasonably be inferred from the evidence presented.

Such conduct violated Rule 1.15(a) of the Maryland Rules of Professional Conduct. The Respondent also violated Rules 1.15(b) and 1.16(d) when she failed to promptly deliver the advance payment of fee that had not been earned to client, Robert Ravenscroft, upon the conclusion of any active representation. “The unearned portion of the Ravenscroft retainer held by the Respondent as of May 2, 1997 constituted “trust money” as defined in the Maryland Code, Business Occupations and Professions Article, § 10-301(d). As trust money, the balance of $ 1, 097.50 should have been maintained in an attorney trust account until such funds were earned by the Respondent as legal fees, expended as costs associated with the representation or refunded to the client upon conclusion of the representation. This court concludes that at some point after May 2, 1997, the Respondent no longer maintained the unearned balance of $ 1, 097.50 in trust and further concludes that she used such funds, which belonged to Leah Ravenscroft, for an unauthorized purpose in violation of § 10-306 of the Business Occupations and Professions Article. ²⁴¹ “Finally, the Respondent violated Rule 8.1(b) of the Rules of Professional Conduct by knowingly failing to respond to lawful demands for information from a disciplinary authority when ignored Bar Counsel’s letter requesting a response to Mr. Ravenscroft’s complaint.” As indicated, the respondent did not participate in the proceedings.

The petitioner did not file any exceptions to the findings and conclusions of the hearing court. It did, however, make a recommendation for sanction, that the respondent be disbarred from the practice of law. In support of the recommendation, the petitioner emphasizes that the respondent as found by the hearing court to have “committed multiple violations of the Rules of Professional Conduct,” including failing to account for the unearned portion of a retainer, failing, despite being requested to do so to refund that unearned portion to the client and using those funds, which constituted trust funds, for a purpose other than that for which it was entrusted to the respondent. The petitioner also directs our attention to the fact that the respondent has previously been disciplined and, significantly, “While the previous disciplinary proceeding was still pending before the Court in early 2008, Bar Counsel received the complaint that is the subject of the current proceeding.

Prior to her suspension, the Respondent ignored Bar Counsel’s efforts to obtain information in response to the complaint filed by Robert Ravenscroft. She also did not respond at any stage of the subsequent disciplinary process.” It found it important that, unlike the current proceedings, in which the respondent did not participate at all, in the prior proceeding, the respondent participated, offering some explanation for her misconduct, that, at the time, her judgment was impaired by the depression, from which she was suffering, and refunded the unearned fee to the complaining client. The petitioner concludes: “Given her prior experience in the disciplinary system, the Respondent, if she had any interest in regaining her eligibility to practice law at some point in the future, should have ²⁴² recognized the