Attorney Grievance Commission v. Fader

BATTAGLIA, J. Joel Jay Fader, Respondent, was admitted to the Bar of this Court on June 1, 1989. On April 3, 2012, the Attorney Grievance Commission, acting through Bar Counsel (“Bar Counsel”), pursuant to Maryland Rule lO-TSUa), 1 filed a “Petition for Disciplinary or Remedial Action” against Fader. The ³⁹⁸ principal complaint, out of two in Bar Counsel’s petition, arose from an administrative case between one of Fader’s clients and the Maryland Department of Health and Mental Hygiene (“DHMH”), and was filed by an employee of DHMH, Lauren Jones. The complaint alleged that a request Fader had filed with the Office of Administrative Hearings (“OAH”) for a postponement of a hearing contained misrepresentations about his health and that a forged letter ostensibly from Fader’s treating physician was submitted in support.

The complaint also alleged that when challenged about the truthfulness of the representations in the postponement request during the subsequent hearing at OAH, Fader “did not inform [the administrative law judge] that the doctor’s note was forged.” The second complaint involved the revocation of a conditional diversion agreement and the resurrection of the charges against Fader, including his inadequate maintenance of two attorney trust accounts, (“ATA 1”) and (“ATA 2”), 2 at Wachovia Bank. Bar Counsel alleged that Fader “improperly deposited and maintained earned fees and personal funds” in ATA 1, after having transferred all client funds to ATA 2. Further, Bar Counsel claimed that Fader “failed to maintain his attorney trust account in compliance with Maryland Rules, Title 16, Chapter 600.” In the conditional diversion agreement, Fader had admitted engaging in professional misconduct in violation of Rule 1.15(a) and Maryland Rules 16-606.1, 16-607, and 16-609(b); after the Jones complaint was filed, the Attorney Grievance Commission revoked the agreement. Bar Counsel charged Fader with violations of the Maryland Lawyers’ Rules of Professional Conduct 1.1 (Competence), 3 1.3 ³⁹⁹ (Diligence), 4 1.15(a) and (b) (Safekeeping Property), 5 3.2 (Expediting Litigation), 6 3.3(a)(1) and (4) (Candor Toward the Tribunal), 7 3.4(c) (Fairness to Opposing Party and Counsel), 8 ⁴⁰⁰ 5.3(b) and (c) (Responsibility Regarding Nonlawyer Assistants), 9 and 8.4(a)-(d) (Misconduct), 10 and Maryland Rules 16-606 (Name and designation of account), 11 16-606.1 (Attorney ⁴⁰¹ trust account record-keeping), 12 16-607 (Commingling of ⁴⁰² funds), 13 and 16-609(a) (Prohibited transactions). 14 ⁴⁰³ Pursuant to Rule 16-757, 15 in an order dated April 5, 2012, we referred the petition to Judge Martin P. Welch of the Circuit Court for Baltimore City for a hearing.

At the hearing, Bar Counsel presented testimony from Linda Bailey, who was a docket clerk at OAH at the time the postponement request was faxed; Ms. Jones; Fader; and Fader’s fiancée, Elizabeth Collier, who also testified for Fader. Fader also called Dr. Perry Foreman and a variety of character witnesses, in addition to testifying on his own behalf. Various documents were introduced and admitted into evidence, including the transcript of a hearing at OAH that ⁴⁰⁴ occurred on December 15, 2010; the transcript of Fader’s deposition taken by Bar Counsel on June 14, 2011; a redacted copy of Jones’s original complaint; and a copy of the handwritten cover letter submitted with a fabricated letter containing the signature of Dr. Foreman, one of Fader’s treating physicians. After the hearing, Judge Welch issued written Findings of Fact and Conclusions of Law, in which he determined, with respect to Ms. Jones’s complaint, that Fader violated Maryland Lawyers’ Rules of Professional Conduct 3.3(a)(1) and (4), 5.3(b), and 8.4(a) and (c), but did not violate Rules 1.1, 1.3, 3.2, 3.4(c), 5.3(c), and 8.4(b) and (d).

With respect to Bar Counsel’s complaint regarding the lawyer trust accounts, Judge Welch concluded that Fader violated Maryland Lawyers’ Rules of Professional Conduct 1.15(a) and (b), and 8.4(a) and (d), and Maryland Rules 16-606.1, 16-607, and 16 — 609(b). 16 Judge Welch’s Findings of Facts and Conclusions of Law state: FINDINGS OF FACT AND CONCLUSIONS OF LAW I. INTRODUCTION Pursuant to an order of the Court of Appeals dated April 5, 2012, this matter was assigned and transmitted to the Circuit Court for Baltimore City to be heard and determined by the undersigned judge of the Eighth Judicial Circuit in accordance with Rule 16-757. The Petition, as set forth by the Attorney Grievance Commission (hereinafter “Petitioner”), alleges two distinct ⁴⁰⁵ instances of misconduct by Respondent, Joel Jay Fader, Esquire (hereinafter “Respondent”). The first alleged incident of misconduct (BC Docket No. 2010-253-04-17) stems from the mismanagement of an attorney trust account, which had resulted in a Conditional Diversion Agreement (hereinafter “CDA”). Relating to this incident, the Petition specifically alleges violations of Maryland Lawyers’ Rules of Professional Conduct (hereinafter “MRPC”) 1.15(a), 1.15(b), 8.4(a), and 8.4(d) as well as Maryland Rules 16-606.1, 16-607, and 16-609(a).

Upon the determination by Petitioner that Respondent had engaged in new misconduct due to the second alleged incident of misconduct, Petitioner revoked the CDA. The second alleged incident of misconduct (BC Docket No. 2011-843-03-17) stems from Respondent’s representation of Patricia Liquefatto in a matter before the Office of Administrative Hearings (hereinafter “OAH”). The alleged misconduct specifically relates to the circumstances surrounding a request for a postponement of the matter on October 27, 2010, which sought a postponement of a matter set for a hearing on October 28, 2010, and the subsequent documentation provided in support of that request on November 4, 2010. The Petition alleges that Respondent violated Maryland Lawyers’ Rules of Professional Conduct 1.1, 1.3, 3.2, 3.3, 3.4, 5.3, and 8.4 through his behavior relating to this matter.

Pursuant to Rule 16-757(a), an evidentiary hearing for this Attorney Grievance matter was held on August 27, 2012, and August 28, 2012, before this Court. James N. Gaither, Esquire represented the Petitioner, the Attorney Grievance Commission of Maryland, and Joseph Murtha, Esquire, represented Respondent, Joel Jay Fader, Esquire. During the course of the hearing, Linda Bailey, Lauren Jones, Esquire, Respondent, and Elizabeth Collier testified in Petitioner’s case in chief. Elizabeth Collier, Perry Foreman, M.D., Ph.D., Dominic Garcia, Esquire, Gregory Jones, Esquire, Michael Eisenstein, Esquire, James Farley, Esquire, Cheryl Chromartie, Esquire, Cynthia Unglesbee, Es ⁴⁰⁶ quire, and Respondent, testified during Respondent’s case in chief.

II

STANDARD OF REVIEW Maryland Rule 16-757 provides that “[t]he hearing of a disciplinary action is governed by the rules of evidence and procedure applicable to a court trial in a civil action tried in circuit court.” Md. Rule 16-757(a). Further, the Rule provides that “[t]he petitioner has the burden of proving averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence.” Md. Rule 16-757(b). The Court of Appeals has defined clear and convincing evidence, stating: The requirement of “clear and convincing” or “satisfactory” evidence does not call for “unanswerable” or “conclusive” evidence.

The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure — that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence. Attorney Grievance Comm’n v. Smith, 405 Md. 107, 123-24 [ 950 A.2d 101 ] (2008) (quoting Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 79 [ 753 A.2d 17 ] (2000)). ⁴⁰⁷ III.

FINDINGS OF FACT[ 17 ] Pursuant to Maryland Rule 16 — 757(b), the Court finds the following facts: A. General Factual Background 1. Respondent is a fifty-one (51) year old attorney who currently practices law in Baltimore, Maryland. 2. Respondent began his legal career in Florida where he worked as a commercial litigator from 1986 through 1989, and his practice primarily focused on commercial litigation, covenant not-to-compete work and employment contracts. 3. Respondent is still a member of the Florida Bar. 4.

Respondent has been admitted to practice law in the State of Maryland since 1989. 5. Upon arriving in Maryland, Respondent initially worked for Howard Cardin, Esquire, and James Gitomer, Esquire. During the approximately two and a half years during which Respondent worked for these attorneys, his practice involved family law, workers’ compensation law, personal injury law, criminal law, and some trusts and estates law. 6. Respondent then began working for James Farley, Esquire.

While working for Mr. Farley, Respondent’s practice involved domestic work, workers’ compensation law, personal injury law, and criminal law. 7. Respondent opened his own law firm in 1996 and primarily practices in the areas of workers’ compensation law, family, personal injury law, and some minor criminal law. 8. As of the evidentiary hearing, Respondent does not employ any staff, however, he has employed Ms. Katherine Saunders on an irregular, part-time basis. ⁴⁰⁸ 9. Beginning in December of 2000, Respondent has also employed Elizabeth Collier, as a paralegal on a part-time basis. 10.

After graduating from high school, Ms. Collier attended school for nursing and then switched her focus to paralegal studies. 11. Ms. Collier does not have a paralegal certificate nor did she earn a college degree. 12. Ms. Collier became involved with the legal profession by working as a receptionist or secretary for various law firms. 13. While employed by Respondent, Ms. Collier’s duties included managing clients, talking on the telephone, drafting pleadings, taking dictation, meeting with clients for small things, making copies, and various other tasks traditionally performed by paralegals. 14.

Ms. Collier also drafted motions, including motions for postponements, while working for Respondent. 15. Respondent’s relationship with Ms. Collier became romantic in nature in the spring of 2008 while Ms. Collier was married. 16. Currently, Respondent and Ms. Collier have two children together. 17. Respondent and Ms. Collier’s second child was born on October 28, 2010. 18.

Respondent was diagnosed with epilepsy on January 20, 2010, after having suffered his first grand mal seizure on December 7, 2009, which resulted in hospitalization. 19. Respondent is treated by Perry Foreman, M.D., Ph.D. (hereinafter “Dr. Foreman”), who specializes in neurology and focuses primarily on epilepsy and clinical neurophysiology. 20. Since the initial diagnosis of epilepsy in January of 2010, Respondent has experienced a number of seizures, some of which have required hospitalization. ⁴⁰⁹ 21.

On May 7, 2010, Respondent experienced another grand mal seizure, which required hospitalization. Almost a year later, on May 9, 2011, Respondent experienced a third grand mal seizure while driving a car, which resulted in an automobile accident and hospitalization. Respondent had a fourth grand mal seizure on July 31, 2011. 22. Respondent would occasionally experience seizures that were less severe in nature, called breakthrough or absence seizures. 23.

Respondent experienced symptoms of depression as a consequence of the onset of epilepsy. Such depression is commonly associated with epilepsy, and Respondent sought treatment for his depression from a psychiatrist, Alfred Forrester, M.D., for his depression. 24. As of the date of Hearing, Respondent is in compliance with the treatment plans recommended by Dr. Forrester for his mental health and Dr. Foreman for his physical health. 25. After each grand mal seizure, Respondent ceased driving at doctor’s direction for a period of time.

After his May 2011 grand mal seizure, Respondent stopped driving for almost a year; he was cleared to drive again on April 29, 2012. 26. Respondent often relied on Ms. Collier for transportation. B. Findings of Fact Relevant to the Attorney Trust Account Complaint 27. In mid to late 2008, Respondent’s motor vehicle was stolen.

At the time the motor vehicle was stolen, a checkbook and paperwork from Respondent’s attorney trust account, which ended in 6894 (hereinafter “ATA 1”) were located inside of the vehicle. 28. Respondent, fearing that someone might forge a check against ATA 1, opened a second attorney trust account, which ended in 9419 (hereinafter “ATA 2”). ⁴¹⁰ 29. Respondent transferred all client funds from ATA 1 to ATA 2 and proceeded to use ATA 2 as his IOLTA account. 30. Concerned about potential scriveners’ errors, Respondent left his own fees in ATA 1. 31.

In the fall and summer of 2009, Respondent began to use ATA 1 as an account upon which he drew his rent. 32. On October 23, 2009, Bar Counsel received notification from Respondent’s bank, Wachovia Bank, of an overdraft on an ATA 1. 33. The notice indicated that a check in the amount of $1,910.00 was presented against a balance of $927.06. 34. While Respondent’s misconduct was not the result of any willful or dishonest conduct, there were several irregularities regarding his attorney trust accounts. 35.

Respondent improperly titled and designated ATA 2. 36. Respondent failed to reconcile ATA 2 for the month of February 2010. 37. Respondent made several withdrawals labeled “counter withdrawals” that were not associated with any client. 38. As a result of this misconduct and pursuant to Maryland Rule 16-736, the Attorney Grievance Commission entered into a CDA with Respondent that would run from December 15, 2010 through December 15, 2012.

Pursuant to the CDA, James J. Farley, Esquire, was to serve as Respondent’s law practice monitor and Dr. Alfred Forrester, M.D., was to be Respondent’s medical provider monitor. 39. By signing the CDA, Respondent acknowledged that he had violated 1.15(a) of the Maryland Lawyers’ Rules of Professional Conduct and Maryland Rules 16-606.1, 16-607, 16-609(b). 40. Respondent, following his entrance into the CDA, worked to get his files in proper order, and his files and bank accounts were in good order. ⁴¹¹ C. Findings of Fact Relevant to the Complaint Involving the Postponement Request Sent to the OAH for the Patricia Liquefatto Wrongful Termination Hearing. 41. Respondent was engaged to represent Patricia Liquefatto in a wrongful termination case before the OAH. 42.

Respondent was representing Ms. Liquefatto pro bono because he had previously represented her and her family members in a variety of other matters. 43. An OAH hearing in Ms. Liquefatto’s case was scheduled for October 28, 2010, before Administrative Law Judge Susan Sinrod. 44. Respondent did not go to his office at all on October 27, 2010. Instead, Respondent remained at the residence where he prepared for the OAH hearing with the majority of the file. 45.

The residence, which Respondent shared with Ms. Collier, was located on Taney Road in Baltimore City. 46. On October 27, 2010, Respondent was on the verge of moving to a new residence pursuant to a lease that was to begin on November 1, 2010. 47. There was no electricity in the Taney Road residence at the time. 48. Respondent suffered several mild seizures during the day of October 27, 2010. 49.

On October 27, 2010, Ms. Collier was in the process of extricating herself from her romantic relationship with Respondent. She was attempting to move her belongings back to the home she shared with her then husband. 50. On October 27, 2010, Ms. Collier was roughly 36 to 37 weeks pregnant with her second child with Respondent. 51. On October 27, 2010, Ms. Collier was in the late stages of her pregnancy.

She was in a lot of pain and feeling “miserable and just tired.... ” ⁴¹² 52. Ms. Collier arrived in the office at approximately 11:00 a.m. or 12:00 p.m. after having been to the residence on Taney Road, where she packed some of her belongings and saw Respondent. 53. While at the residence, Respondent expressed to Ms. Collier that he was not feeling well and that the OAH hearing scheduled for the following day needed to be postponed. 54. Ms. Collier created and faxed a postponement request to the OAH, which was accompanied by a copy of the label on Respondent’s prescribed seizure medication and an altered out-of-work slip from Dr. Foreman, Respondent’s treating physician at Sinai Hospital.

Ms. Collier had altered the dates on a previously issued out-of-work slip prior to faxing a copy to the OAH. 55. Ms. Collier faxed this postponement request with a copy of Respondent’s signature as well as the supporting materials she had created to the OAH at approximately 5:00 p.m. on October 27, 2010. 56. Ms. Collier transported Respondent to a regularly scheduled appointment with his psychiatrist, Dr. Forrester, in Cockeysville. The appointment lasted from 6:00 p.m. to 7:00 p.m., and Ms. Collier waited to transport Respondent back to the residence they shared at Taney Road after the appointment. 57.

At some point in the evening of October 27, 2010, Respondent called Ms. Liquefatto and left a voicemail message stating that he was not feeling well. He advised Ms. Liquefatto via this voicemail that he would not be attending the OAH hearing on October 28, 2012, and he opined that the OAH hearing would likely be postponed if he failed to attend. 58. Also on the evening of October 27, 2010, Respondent made an effort to contact opposing counsel in the Liquefatto matter, leaving a message that Respondent was experiencing seizures and would not likely be able ⁴¹³ to appear for the scheduled OAH hearing on October 28, 2010. 59. At approximately 8:30 p.m. on October 27, 2010, Respondent made a call to the OAH and left a voicemail message stating that he was on his way to Sinai Hospital because of his epileptic condition. 60.

After they returned to the Taney Road residence from Respondent’s appointment with Dr. Forrester, Ms. Collier drove Respondent to Sinai Hospital. Respondent and Ms. Collier arrived at Sinai Hospital, but Respondent chose not to stay due to the number of people awaiting treatment and Ms. Collier’s discomfort. 61. Collier then returned Respondent to their residence on Taney Road and proceeded to return to her marital home in Dundalk. 62. Upon returning to her marital home in Dundalk, Ms. Collier went into labor with her second child with Respondent. 63.

Ms. Collier’s then husband transported her to Greater Baltimore Medical Center (hereinafter “GBMC”) where she gave birth in the morning of October 28, 2012, to her second child with Respondent. 64. Ms. Collier’s then husband also transported Respondent to GBMC in time for his child’s birth by [sic], 65. On the morning on October 28, 2012 at approximately 8:30 a.m., Respondent placed a telephone call to the OAH, leaving a message that stated that he was at GBMC. He did not indicate why he was there. 66.

Neither Respondent nor Ms. Liquefatto appeared for the scheduled OAH hearing on October 28, 2010. 67. On October 28, 2010, Judge Sinrod postponed the scheduled OAH hearing contingent upon Respondent’s production of a letter from his doctor on his doctor’s letterhead detailing Respondent’s condition on October 27, 2010, and October 28, 2010. ⁴¹⁴ 68. Respondent handwrote a request to his staff that they gather and send the required documentation in response to Judge Sinrod’s request. 69. Respondent’s handwritten request was primarily directed to Ms. Collier rather than the other staff member, Katherine Saunders, who worked on an irregular, part-time basis. 70.

Ms. Collier created a letter purported to be from Dr. Foreman, stating that on the evening of October 26, 2010, Respondent had been transported to Sinai Hospital Emergency Room and had been released on October 27, 2010, with a disability slip, which excused Respondent from work until November 3, 2010. 71. Respondent drafted a handwritten fax coversheet, dated November 4, 2010, to the OAH noting that the attendant faxed materials were those requested by Judge Sinrod. 72. A fax with this cover letter drafted by Respondent as well as a letter purportedly from Dr. Foreman was sent to the OAH. 73. Respondent did not review the forged letter from Dr. Foreman prior to its transmission to the OAH. 74.

The forged letter included a number of details about Respondent’s medical condition and stated that he had been unwell the day of October 26, 2010, and had been admitted to Sinai Hospital that evening and then released the following day, October 27, 2012. The letter went on to state that the cause of the minor seizure that Respondent experienced was a missed dose of the prescribed medication, Keppra. 75. Ms. Collier did not place a copy of either the postponement request or the forged letter into the client file. 76. An OAH hearing was held regarding the Liquefatto matter on December 15, 2010, during which opposing counsel challenged the validity of the attendant letter purportedly from Dr. Foreman.

Opposing counsel ⁴¹⁵ drew Judge Sinrod’s attention to the misspelling of the building address of the doctor on the letterhead used as well as the differences between the letterhead used on the faxed letter and the letterhead sent to opposing counsel by the physician. Additionally, opposing counsel represented to Judge Sinrod that when his staff contacted the doctor’s office, the office informed his staff that no one there had produced such a letter. 77. Prior to this December 15, 2010 OAH hearing, Ms. Collier did not inform Respondent of the specifics of the postponement request she had sent on October 27, 2010, or of the specifics relating to the supportive documentation she had sent to the OAH on November 4, 2010. 78. During the December 15, 2010 OAH hearing, opposing counsel also referred to the discussion of a grand mal seizure in the original postponement request. 79.

At the December 15, 2010 OAH hearing, Respondent stated that he had relied on his paralegal to obtain the requested documentation and that it could be possible that she had “created some documents.” 80. Also at the December 15, 2010 hearing, Respondent stated that on October 27, 2010, he had filed a motion for postponement with the court and had attached a copy of his Keppra prescription. 81. At the December 15, 2010 OAH hearing, Respondent also represented to the OAH that he sought and received treatment at Sinai Hospital where he was informed that he was experiencing seizures, which had been diagnosed as idiopathic epilepsy without any kind of particular stimulating factor, and that he was having a stress reaction to the prescribed Keppra. 82. At the December 15, 2010 OAH hearing, Respondent informed Judge Sinrod that his daughter had been born on the morning of October 28, 2010. 83.

Judge Sinrod chose to proceed with the OAH hearing in the Liquefatto matter. ⁴¹⁶ 84. On May 9, 2011, Respondent was hospitalized following an automobile accident that had been caused by a grand mal seizure. While in the hospital recuperating on May 10, 2011, Ms. Collier informed Respondent that an investigator had contacted her from the Attorney Grievance Commission. She informed Respondent that she had submitted the postponement request and that she had forged a letter from Dr. Foreman in support of that postponement request. 85.

Respondent was transferred to the psychiatric unit as a result of Ms. Collier’s disclosures. 86. Respondent was released from Sinai Hospital’s psychiatric unit on May 15, 2011. 87. On June 14, 2011, under oath and without counsel, Respondent was interviewed by Bar Counsel about the postponement of the OAH hearing in the Liquefatto matter. 88. During the course of his interview with Bar Counsel, Respondent stated that he had produced the request for postponement.

Though Respondent did not recall drafting the request, he relied on the presence of his signatures on the fax coversheet, the request itself, and certificate of service.

IV

CONCLUSIONS OF LAW a. Legal Conclusions Relating to Respondent’s Attorney Trust Accounts and Respondent’s Conditional Diversion Agreement The Court finds by clear and convincing evidence, namely Respondent’s admission in signing the CDA, that Respondent violated Maryland Lawyers’ Rule of Professional Conduct 1.15(a) and Maryland Rules 16-606.1, and 16-607, and 16-609(b). Additionally, the Court finds that Respondent’s conduct in depositing and maintaining personal funds in ATA 1 and ATA 2 also violates Maryland Lawyers’ Rules of Professional Conduct 1.15(b) and 8.4(a) and (d). In admitting to ⁴¹⁷ violating Maryland Rule 16-607 by signing the CDA, Respondent also acknowledges that he violated MRPC 1.15(b), which provides that “[a] lawyer may deposit the lawyer’s own funds in a client trust account only as permitted by Rule 16-607(b).” MRPC 1.15(b).

Likewise, “Rule 8.4(a) requires a finding that the Respondent has violated other rules.” Attorney Grievance Comm’n v. Zakroff, 387 Md. 603, 628 [ 876 A.2d 664 ] (2005). Therefore, because Respondent had acknowledged his violation of MRPC 1.15(a), he has also, essentially, conceded that he has also violated MRPC 8.4(a) as well. As to MRPC 8.4(d), the Court of Appeals has explained that an act prejudicial to the administration of justice is one that “tends to bring the legal profession into disrepute.” Attorney Grievance Comm’n v. Goodman, 426 Md. 115, 128 (2012) (citing and quoting Attorney Grievance Comm’n v. Rose, 391 Md. 101, 111 [ 892 A.2d 469 ] (2006)). Commingling of personal and client funds, including the failure to maintain a separate trust account, has been determined to be prejudicial to the administration of justice, and therefore violates Rule 8.4(d).

Id. (citing Attorney Grievance Comm’n v. Carithers, 421 Md. 28, 56 (2011)) (concluding that misappropriation of client funds and failure to maintain client trust account violated MRPC 8.4(d)). Therefore, the Court finds that Petitioner has demonstrated by clear and convincing evidence that Respondent’s misconduct with respect to his management of his attorney trust accounts violated Rules 1.15(a) and (b) and 8.4(a) and (d) of the Maryland Lawyers’ Rules of Professional Conduct and Maryland Rules 16-606.1, 16-607, and 16-609(b). b. Legal Conclusions Relating to the Postponement of the Liquefatto Matter before the OAH. i.

Maryland Rule of Professional Conduct 1.1: Competence “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowl ⁴¹⁸ edge, skill, thoroughness and preparation reasonably necessary for the representation.” MRPC 1.1. The Court of Appeals has held that “an attorney’s failure to appear in court for a client’s trial, absent an acceptable explanation, [is] incompetent representation and a violation of MRPC 1.1.” Attorney Grievance Comm’n v. Harris, 366 Md. 376, 403 [ 784 A.2d 516 ] (2001) ([citing] Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 74 [ 753 A.2d 17 ] (2000)). The Court finds by clear and convincing evidence that Respondent failed to appear for the scheduled hearing in the Liquefatto matter on October 28, 2010.

The Court notes the dubious explanations offered to the OAH through the October 27, 2010 fax containing the postponement request and the altered out-of-work-slip; the telephone call placed on the evening of October 27, 2010, by Respondent stating he was on his way to Sinai Hospital; the telephone call placed on the morning of October 28, 2010, by Respondent stating that he was at GBMC; and those explanations offered orally at the December 15, 2010 OAH hearing in the Liquefatto matter. The Court finds, however, by a preponderance of the evidence that Respondent did have an acceptable explanation for his failure to appear for his client’s scheduled hearing on October 28, 2010, before the OAH. Specifically, the Court finds that Respondent had experienced several mild seizures due to his epileptic condition through the course of the day on October 27, 2010, and such seizures the day before a hearing constitute a valid reason to seek a postponement of that hearing. Therefore the Court is not convinced by clear and convincing evidence that Respondent violated MRPC 1.1. ii.

Maryland Rule of Professional Conduct 1.3: Diligence “A lawyer shall act with reasonable diligence and promptness in representing a client.” MRPC 1.3. The Court of Appeals has determined that an attorney’s failure to appear can constitute a violation of MRPC 1.3. Attorney Grievance Comm’n v. Byrd, 408 Md. 449, 478 [ 970 A.2d 870 ] (2009). ⁴¹⁹ The Court finds that despite Respondent’s failure to appear for the scheduled OAH hearing in the Liquefatto matter on October 28, 2010, Petitioner has failed to show by clear and convincing evidence that Respondent failed to act with reasonable diligence and promptness in the representation of his client, Patricia Liquefatto. Respondent has shown by a preponderance of the evidence that his medical condition on October 27, 2010, necessitated that he seek a postponement of the matter.

Furthermore, had Respondent failed to seek a postponement and been required to represent his client before the OAH in his medical condition at the time, he would likely have been unable to adequately represent his client. Therefore, Petitioner has not shown by clear and convincing evidence that Respondent violated MRPC 1.3. iii. Maryland Rule of Professional Conduct 3.2: Expediting Litigation “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” MRPC 3.2. Comment 1 of MRPC 3.2 further clarifies this requirement by providing that: Although there will be occasions when a lawyer may properly seek a postponement for personal reasons, it is not proper for a lawyer to routinely fail to expedite litigation solely for the convenience of the advocates.

Nor will a failure to expedite be reasonable if done for the purpose of frustrating an opposing party’s attempt to obtain rightful redress or repose. It is not a justification that similar conduct is often tolerated by the bench and bar. The question is whether a competent lawyer acting in good faith would regard the course of action as having some substantial purpose other than delay. Financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client.

MRPC 3.2, cmt. 1. Considering the Court’s finding by a preponderance of the evidence that Respondent experienced several seizures caused by his epilepsy on October 27, 2010, ⁴²⁰ the Court concludes that Respondent was acting in good faith when he sought a postponement of the October 28, 2010 hearing. Although the initial faxed postponement request contained a forged attachment and clearly false statements regarding the type of seizure Respondent had experienced that day, the desire to postpone the matter was properly motivated by his poor health that day. Therefore, Petitioner has not shown by clear and convincing evidence that Respondent violated MRPC 3.2. iv.

Maryland Rule of Professional Conduct 3.3: Candor Towards the Tribunal “A lawyer shall not knowingly ... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.... ” MRPC 3.3. The Court finds by clear and convincing evidence that the Respondent left a voicemail message at the OAH at approximately 8:30 p.m. on October 27, 2010, requesting a postponement because of seizure activity and his then-pending treatment at Sinai Hospital. The Court also finds by clear and convincing evidence that Respondent left an additional voicemail message at OAH on the morning of October 28, 2010, in which he stated only that he was at GBMC and could not appear at the hearing that morning. Because Respondent failed to include in his message that he was at GBMC awaiting the impending birth of this child, Respondent failed to correct his prior statement to the tribunal that he was seeking treatment for his seizures.

Additionally, the Court finds by clear and convincing evidence that on December 15, 2010, when Respondent appeared before Judge Sinrod, he further failed to correct his previously made false statement made to the OAH in the voicemail left the evening of October 27, 2010, regarding his treatment at Sinai Hospital. Further, in light of both Ms. Collier and Respondent’s testimony that they left Sinai Hospital’s emergency room due to the large crowd and Ms. Collier’s discomfort prior to Respondent receiving any treat ⁴²¹ ment or diagnosis from a physician, Respondent overtly misled Judge Sinrod on December 15, 2010. Respondent falsely represented to Judge Sinrod that he had not only sought treatment but had also received treatment at Sinai Hospital on October 27, 2010, in the form of diagnosis as to the nature and cause of the mild seizures he had suffered earlier that day. Therefore, Petitioner has shown by clear and convincing evidence that Respondent violated MRPC 3.3. v. Maryland Rule of Professional Conduct 3.4: Fairness to Opposing Counsel In relevant part, the Maryland Rule of Professional Conduct 3.4 provides that “[a] lawyer shall not . .. knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.... ” MRPC 3.4(c).

A repeated failure to appear in court is a violation of Rule 3.4(c) of the MRPC. See Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 569-570 [ 846 A.2d 353 ] (2004). However, an attorney’s failure based on presumed or anticipated permission to postpone hearing is not a knowing violation of 3.4(c). Attorney Grievance Comm’n v. Dietz, 331 Md. 637 [ 629 A.2d 678 ] (1993).

The Court finds by a preponderance of the evidence that Respondent failed to appear due to a presumed postponement and that Respondent also attempted to contact opposing counsel to advise him that Respondent was not feeling well and would likely not be able to attend the hearing on October 28, 2010. Therefore, Petitioner has failed to show by clear and convincing evidence that Respondent violated MRPC 3.4(c). vi. Maryland Rule of Professional Conduct 5.3: Responsibilities Regarding Nonlawyer Assistants In relevant part, Maryland Rule of Professional Conduct 5.3 provides that with respect to a nonlawyer employed or managed by a lawyer: ⁴²² (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct Is compatible with the professional obligations of the lawyer; [and] (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Maryland Lawyers’ Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved MRPC 5.3. The Court finds by clear and convincing evidence that Respondent violated MRPC 5.3(b) based upon his failure to properly supervise Ms. Collier, his nonlawyer employee.

The Court finds that Respondent failed to properly supervise Ms. Collier because he failed to review documents she prepared and he was inappropriately dependent upon her to manage his professional and personal affairs. The Court finds this failure to review the documents Ms. Collier produced, as well as Respondent’s dependence upon her, to be especially disconcerting considering Ms. Collier’s lack of formal training as a paralegal; the level of stress she was experiencing due to her pregnancy, of which Respondent was wholly aware; her tumultuous relationship with Respondent; and her responsibilities to their newborn child. The Court further notes that even after becoming aware that there were questionable submissions made on his behalf by Ms. Collier, Respondent failed to follow up with Ms. Collier as to what documents had been submitted and what materials were absent from his case file. As to MRPC 5.3(c)(1), the Court finds that Petitioner has failed to prove by clear and convincing evidence that Respondent violated MRPC 5.3(c)(1).

Specifically, the Court is not convinced that Respondent ratified with specific knowledge Ms. Collier’s conduct, namely her submission to the OAH of a forged out-of-work slip sent with the postpone ⁴²³ ment request on October 27, 2010, and the subsequent submission to the OAH of the forged letter from Dr. Foreman. Therefore, the Court finds that Petitioner has shown by clear and convincing evidence that Respondent violated MRPC 5.3(b). vii. Maryland Rule of Professional Conduct 8.4 It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice.... MRPC 8.4.

The Court of Appeals has held that when a “respondent has violated several Rules of Professional Conduct, he necessarily violated MRPC 8.4(a) as well, which finds professional misconduct where a lawyer ‘violate[s] or attempts] to violate the Rules of Professional Conduct.’ ” Attorney Grievance v. Gallagher, 371 Md. 673, 710-11 [ 810 A.2d 996 ] (2002) (quoting MRPC 8.4(a)). The Court finds that because the Court has found that Respondent violated Maryland Rules of Professional Conduct 1.15(a), 3.3, and 5.3(b), Respondent has also violated Maryland Rule of Professional Conduct 8.4(a). The Court notes that no evidence was introduced to show that Respondent committed any criminal act; therefore -the Court finds that Respondent did not violate MRPC 8.4(b). As to MRPC 8.4(c), the Court finds that in calling the OAH on the morning of October 28, 2010, and stating only that he was at GBMC after having called the previous evening stating that he was at Sinai Hospital being treated ⁴²⁴ for his seizure disorder, Respondent knowingly misled the OAH by failing to state that he was at GBMC to witness the birth of his child.

Respondent’s failure to correct the basis of his postponement request from his medical seizure condition to the impending birth of his child constitutes a misrepresentation. Therefore, the Court finds by clear and convincing evidence that Respondent engaged in a misrepresentation in violation of MRPC 8.4(c). Upon review of Respondent’s testimony under oath before Bar Counsel as well as his testimony in trial before this Court, the Court finds by clear and convincing evidence that Respondent further violated MRPC 8.4(c). At trial, both Respondent and Ms. Collier testified that on May 10, 2011, she informed him of her submission of the postponement request along with the fabricated out-of-work slip and her subsequent submission of the forged letter from Dr. Foreman.

In fact, this revelation brought about a psychiatric hospitalization. Despite this seemingly epic revelation of Collier’s forged submissions to OAH and its resulting effect upon Respondent’s mental health, Respondent testified under oath before Bar Counsel on June 14, 2011, that he had actually submitted the postponement request. The Court finds by clear and convincing evidence that Respondent was dishonest in violation of MRPC 8.4(c). With respect to MRPC 8.4(d), the Court notes that Respondent had a valid reason to seek a postponement of the Liquefatto OAH hearing because of his poor health on October 27, 2010, regardless of the inept fashion in which the postponement was sought.

The Court is not convinced by clear and convincing evidence that Respondent’s actions in this matter were prejudicial to the administration of justice. Therefore the Court finds by clear and convincing evidence that Respondent has violated MRPC 8.4(a) and 8.4(c). Consequently, the Court finds that Petitioner has demonstrated by clear and convincing evidence that Respondent’s misconduct with respect to the postponement of the Liquefatto OAH hearing scheduled on October 27, 2010, violated ⁴²⁵ Rules 3.3, 5.3(b), and 8.4(a) and (c) of the Maryland Lawyers’ Rules of Professional Conduct. V. CONCLUSION This Court, having heard this matter on August 27, 2012, and August 28, 2012, and having reviewed and considered the exhibits and testimony of the witnesses, respectfully submits its Findings of Fact and Conclusions of Law on this 12th of October, 2012.

(internal footnotes omitted). In essence, the primary issue in this case involves a request for a postponement, submitted on October 27, 2010, from Fader’s office, for an administrative hearing scheduled for the following day between Fader’s client and DHMH. The postponement request, under Fader’s signature, stated that Fader “suffered a Gran[d] Mai Seizure” and was “hospitalized” on October 27th; that he had been “issued a disability slip for the period until November 3, 2010, and instructed not to work”; and that he was on “heavy doses of anti-seizure medications.” Accompanying the request was a certificate of service with Fader’s signature, a copy of Fader’s Keppra prescription, a disability slip purportedly issued by Dr. Foreman, one of Fader’s treating physicians, that had been forged, and a cover letter with Fader’s signature communicating to OAH’s docket clerk that documents relating to the postponement request were attached. These