Attorney Grievance Commission v. Fallin

WILNER, Judge. The Attorney Grievance Commission (AGC), through Bar Counsel, seeks the disbarment of respondent, Glen Marcus Fallin, based on findings that respondent engaged in several acts of professional misconduct following his earlier indefinite suspension by this Court. For the reasons hereafter stated, we sustain the findings of misconduct and accept the recommendation of Bar Counsel that respondent be disbarred. On January 11, 2001, we filed an unreported opinion and order directing that, effective February 10, 2001, respondent be indefinitely suspended from the practice of law.

Attorney Grievance Commission of Maryland v. Glen Marcus Fallin, September Term 1999, No. 55. That action came as the result of a petition for disciplinary action filed by AGC charging respondent with misconduct in his handling of matters for two clients. In both instances, he accepted a fee from the client but failed diligently to pursue their cases and failed to communicate with them. In one case, although the fee was, in part, a contingent one, respondent neglected to have a written agreement with respect to that fee.

The several violations found by the hearing judge — of Maryland Rules of Professional Conduct (MRPC) 1.3 (acting with diligence), 1.4 (keeping client informed), 1.5(a) (fee shall be reasonable), 1.5(b) (informing client of basis of fee), 1.5(c) (informing client in writing of basis of contingent fee), 1.5(e) (division of fee between counsel), 3.2 (expediting litigation), 8.1(b) (responding to demand for information by Bar Counsel), and 8.4(a) (violating other MRPC) — were not contested by respondent. With respect to sanction, we noted that, in 1999, respondent had been reprimanded and that his then-current misconduct went “to the very heart of the attorney client relationship and the public’s faith in the administration of justice.” Id. at 11. On December 31, 2001, AGC filed another petition, alleging violations with respect to three other clients — Margaret McAnany, Richard Comeau, and Betty Boeller. We ordered ²⁴⁰ that Mr. Fallin respond to the petition within 15 days after service and that Judge Lawrence R. Daniels, of the Circuit Court for Baltimore County, hear the matter.

A copy of the petition was served on the Treasurer of the Clients’ Security Trust Fund, in accordance with the applicable Maryland Rule, along with interrogatories and a request for admission of facts. When apprised that respondent had failed to file a timely response to the petition, Judge Daniels, on March 22, 2002, entered an order of default against him. The order allowed respondent 30 days within which to move to vacate the order and set a hearing for May 8, 2002. No motion to vacate was filed within the 30-day period.

On May 8- — the day set for the hearing — respondent faxed directly to Judge Daniels a motion to vacate the order of default, but, in an accompanying letter, informed the judge that he would not be appearing at the hearing because his computer was inoperative. Because the motion was delivered directly to the judge by FAX and was never filed with the clerk, the judge declined to consider it. 1 Bar Counsel put into evidence the demand for admission of facts and genuineness of documents and the exhibits thereto, and, given respondent’s failure to respond to that demand, asked Judge Daniels to accept the requested facts as admitted and the attached documents as genuine. On the evidence produced, Judge Daniels found, by clear and convincing evidence, as follows: (1) With respect to the complaint of Ms. McAnany, Judge Daniels found that in December, 2000, respondent was retained by her to pursue claims for wrongful termination of her employment and defamation, that in December, 2000, respondent received a fee of $1,000 for the representation, which was to include settlement negotiations, filing suit, and, if ²⁴¹ necessary, trial, that respondent was suspended by this Court on January 11, 2001, the suspension to take effect February 10, 2001, that, following the date of his suspension, he continued to remain involved in the matter, and that he failed to return any part of the fee, notwithstanding that, because of the suspension, he was unable to continue the representation. One particularly damaging item of evidence was an e-mail message he sent to Ms. McAnany on January 22, 2001, informing her that another attorney was likely to undertake the representation “if on Februaiy 11 1 am unable to practice,” but, in that event, “I would still assist behind the scene, although I would not be able to give legal advice directly to you.” On February 20, he sent an amended complaint to Ms. McAnany for her to file.

On those findings, Judge Daniels concluded that respondent had violated both MRPC 1.16, by failing to refund the unearned portion of the fee he received, and MRPC 5.5, by engaging in